Central Administrative Tribunal - Delhi
Amresh Jain vs M/O Finance on 26 November, 2024
1
OA 372/2020
Item No.20/C-1
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 372/2020
M.A. No. 473/2020
Order reserved on: 13.11.2024
Order pronounced on: 26.11.2024
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Rajinder Kashyap, Member (A)
Amresh Jain
S/o Sh. Lt. B. C. Jain, Group A, Deputy Commissioner
Aged about 51 years
R/o -6060/3 Santushti Apartment D-6 Vasant Kunj
New Delhi - 110070
... Applicant
(By Advocate: Mr. A.K. Behera, Sr. Advocate assisted by
Mr. Amarender Pratap Singh)
Versus
1. Union of India
Through its Secretary,
Ministry of Finance
Department of Revenue (Central Board of Indirect Tax
& Customs)
North Block, New Delhi - 110001
2. Central Board of Indirect Tax & Customs
Through its Chairman
Government of India
Ministry of Finance
Department of Revenue
North Block, New Delhi - 110001
... Respondents
(By Advocate: Mr. Ravi Prakash with Mr.Yasharth)
2
OA 372/2020
Item No.20/C-1
ORDER
Hon'ble Mr. Rajinder Kashyap, Member (A):
By way of the present OA filed u/s 19 of the AT Act, 1985, the applicant under para 8 of the original application has prayed for the following reliefs: -
"i. Call for the records of the case.
ii. Quash and set aside the impugned Order no. 87/2019 dated 18/06/2019 Annexure A-1 with all consequential benefits.
iii. Quash and set aside the order dated 17/09/2019 at Annexure A-2.
iv. Pass any other order or direction which this Hon'ble Tribunal thinks fit and proper in the light of the facts and circumstances of the case.
v. Direct the respondents to pay the cost of litigation to the applicant."
2. Pursuant to notice, the respondents have filed their counter affidavit opposing the claim of the applicant and have prayed for dismissal of the present Original Application. The applicant has filed rejoinder on 14.07.2023 and he has reiterated the averments made by him in his pleadings to claim his innocence in this matter. We have heard learned counsels for the parties at great length and have also perused the pleadings available on record.
3OA 372/2020 Item No.20/C-1 FACTS OF THE CASE:
3. The date of birth of the applicant is 06.01.1968. He joined Govt. Service in National Productivity Council (NPC) of Ministry of Industry, Government of India as an Assistant Director (Group- A) in the year 1990. During that time, he appeared in the Civil Services Examination, 1991 and was allocated to IRS (Customs and Excise). After tendering technical resignation from NPC, he joined as Assistant Commissioner (Customs & Excise) on 11.11.1992. In the year 2002, the applicant was posted as Deputy Commissioner in Ludhiana.
4. Learned Senior Advocate appearing for the applicant states that a motivated FIR was lodged against the applicant on 21.02.2002 as the wife of the applicant refused to sell her property to the tenant, who was related to Dr. R.K. Garg, DIG, CBI, Chandigarh. The allegation in the FIR was that the applicant possessed disproportionate assets of Rs. 24 lakhs in excess of his known sources of income. Thereafter, on 23.02.2002, he was arrested by the CBI and was kept under detention beyond 48 hours. He was kept under deemed suspension under Rule 10 of CCS 4 OA 372/2020 Item No.20/C-1 (CCA) Rules as per order dated 15.03.2002 issued by the respondents.
5. Learned Senior Counsel for the applicant states that during April, 2002 after the applicant got released on bail, he made a representation against a motivated FIR and deemed suspension. On 18.02.2003, the Chairman, CBEC (now CBIC) considered and examined the representation of the applicant and recommended the revocation of suspension as on a conclusive finding, the Chairman, CBEC, held that there was a close nexus between the DIG, CBI, Chandigarh, Dr. R.K. Garg and Sh. Satish Goel, who was tenant of the applicant's wife's property and ill motive in the matter of registration of FIR. Thereafter, on 24.12.2003, upon recommendation of the Chairman, CBEC, the revocation of suspension of the applicant was duly considered by the Competent Authority, i.e., President of India, who held that the bias of the DIG, CBI has been exposed in this case and he has been shifted out of the investigation. However, the matter remained under correspondences between the CBI and the Department regarding revocation of suspension.5 OA 372/2020
Item No.20/C-1
6. Learned Senior Counsel for the applicant states that on 02.08.2005, a charge sheet was filed against the applicant in the criminal court under Section 173 CrPC, wherein the allegations made in the FIR were repeated. He submits that the check period was taken from the date the applicant had joined as Assistant Commissioner (Customs & Excise) but excluded the period during which the applicant was working as Assistant Director (Group A) in the National Productivity Council under Ministry of Industry. The intimations and property return filed by the applicant during his tenure in Nation Productivity Council (NPC) was also not taken into consideration in computing the income of the applicant. On 22.12.2008, the Under Secretary AD-5 Branch of CBIC, came as witness and testified to the fact that the entire service record as Assistant Director in NPC till he joined as Assistant Commissioner in IRS and the intimations and property returns given by the applicant during such period has not been considered by the respondents while according sanction for prosecution. Finally, on 12.10.2009, the Competent Authority amongst the respondents revoked the suspension of the applicant.
6OA 372/2020 Item No.20/C-1
7. Learned Senior Counsel for the applicant also submits that on 04.06.2010, the applicant was issued a memorandum of charge under Rule 14 of the CCS (CCA) Rules in regard to the same subject matter as that of criminal proceedings. The applicant challenged the said memorandum in OA No. 3652/2012, wherein the Tribunal gave a direction to the applicant to make a comprehensive representation to the respondents and on 18.02.2014, the respondents considered and decided the applicant's representation by way of passing a reasoned and speaking order and the same was challenged before this Tribunal by way of another OA No. 589/2015. On 08.02.2017, the Tribunal passed the following directions in OA No. 589/2015: -
"Impugned order dated 18.02.2014 is hereby quashed. The matter is remitted back to the disciplinary authority to re- consider the representation dated 25.11.2013 by taking into consideration the specific averments of the applicant regarding his income and assets acquired by him during the period of his earlier employment with National Productivity Council, which inter alia includes the communications/information forwarded by him to the erstwhile employer regarding gifts received by him from his grandfather, including the property devolved upon him by will of his grandfather, and other properties, and the source of properties in the name of applicant's wife and minor daughter. For this purpose, the disciplinary authority will be at liberty to seek assistance of any officer or authority not associated with investigation of the case by CBI. On taking into consideration such material and examining the same, the disciplinary authority may pass appropriate order whether to initiate disciplinary proceedings against the applicant or not. Let this exercise be conducted within a period of four months. Till this exercise is completed and the disciplinary authority passes fresh reasoned and speaking order on the representation of the applicant, pending disciplinary proceedings shall remain in abeyance. No costs."7 OA 372/2020
Item No.20/C-1
8. In view of the aforesaid directions, on July, 2017, the respondents again passed the order without considering the intimation given earlier and the income earned during earlier tenure. The applicant filed OA No. 4306/2017 challenging the said order which is still pending adjudication before the Tribunal.
9. The applicant states that on 05.1.2018, he completed 50 years of age and therefore following the mandate of FR 56(j), his name was considered by the Screening Committee. The said Committee did not find any material to invoke the provision of FR 56 (j) in the case of applicant. However, the applicant was compulsorily retired by invoking the provisions of FR 56 (j) vide impugned order dated 18.06.2019.
10. Applicant contends that he filed an RTI application for providing access to office notes and recommendations of screening committee with respect to passing of the impugned order dated 18.06.2019. However, such application was rejected vide letter dated 18.07.2019. Thereafter, on 26.07.2019, he has filed an appeal against the said refusal which is still pending.
8OA 372/2020 Item No.20/C-1
11. For redressal of grievances, the applicant preferred a detailed representation on 28.06.2019 followed with a reminder dated 11.07.2019. However, his representation was rejected by the Review Committee vide impugned dated 17.09.2019. In the said order, it was categorically stated that the applicant has been retired on the ground of doubtful integrity. Hence, the present OA.
12. In the present OA, the applicant has raised the following grounds by stating that the respondents have issued detailed and comprehensive guidelines dated 21.03.2014. A combined reading of both the said provisions and guidelines makes it clear that powers under FR 56 (j) can be invoked only on two grounds: -
(i) Govt. employees whose integrity is doubtful; and
(ii) Govt. employees who are found to be ineffective or who have become dead woods.
12.1. The applicant has submitted his position on two impugned orders dated 18.06.2019 and 17.09.2019. He states that the first impugned order dated 18.06.2019 is non-reasoned and non-speaking order. Since it does not contain any reasons, no comment is made except to state 9 OA 372/2020 Item No.20/C-1 that the said order has been passed in absence of material required for exercising of power under FR 56 (j). 12.2. The applicant states that in so far as the order dated 17.09.2019 is concerned, reasons that weighed with the Representation Committee are mentioned in para 7. The reasons given by the Representation Committee for invocation of FR 56 (j) and the rebuttal of the applicant is as follows: -
(a) Applicant states that the first important aspect relied upon by the Review Committee is that the officer (applicant) was placed in Agreed List for the years 2003-04, 2004-05 and 2005-06 and thereafter in ODI list from 2006-
07 onwards to 2018-19.
While responding to the above observations (a), the applicant states that it is an established practice that whenever any criminal case or a Dept. proceeding is initiated against a govt. employee, his name is placed in Agreed/ODI List. In the instant case, a criminal case was initiated against the applicant in the year 2002, therefore, his name was placed in the Agreed List from 2003-2004, 2004-2005 and 2005-2006. Similarly, a Dept. proceeding was initiated against the applicant only on 04/06/2010, 10 OA 372/2020 Item No.20/C-1 hence, his name was placed in ODI List from 2006-07 to 2018-19. However, the action on the basis of a govt. employee's name being in the Agreed/ODI List is governed by the MHA OM dated 05/05/1966. The said OM categorically states that the purpose of putting an officer in Agreed/ODI List is to carry secret checks and enquiries against the officer. The OM clearly stipulated that it may be emphasized that no adverse or punitive action is contemplated against any officer on these lists unless these checks, verification or enquiries being for adequate material to reasonably conclude that he is lacking in integrity. The representation committee did not take into consideration aforesaid relevant OM. The representation committee also did not take into consideration the fact that after conducting secret checks and enquiries against the applicant no adverse material surfaced against him, therefore in all his ACR/APAR starting from 2003-04 to 2018-19 all the officers who supervised the work of the applicant clearly and categorically stated that the integrity of applicant is beyond doubt/nothing adverse has come against him. By omitting to consider the said relevant factor the representation committee has given a perverse decision.
11OA 372/2020 Item No.20/C-1
(b) Applicant states that while taking a decision to retire the applicant under 56(j), Review Committee observed that the CBI has registered a case of disproportionate assets against the officer and found that there was an excess of his/family total income by 459%. He had acquired several movable/immovable properties since the date of his joining the department on 11.10.1992 and these properties were registered in his own, his wife's and his daughter's name. The CBI investigations further brought out the fact that except the flat at Noida, no movable/immovable was revealed/declared by the officer to the prescribed authority. While responding to the above observations (b), the applicant mentions that on 21.02.2002 a motivated FIR at the instance of the then DIG, CBI, Chandigarh Dr. R.K. Garg was lodged against the applicant as the wife of the applicant refused to sell her property to the tenant in the said property who was related to Dr. R.K. Garg, DIG, CBI. The criminal case and disciplinary proceedings on the same issue are pending. The suspension of the applicant pursuant to the said FIR was revoked only when the Chairman, CBIC examined the matter and found the nexus between the tenant of the property of the wife of the applicant and Dr. R K Garg, DIG, CBI Chandigarh. He 12 OA 372/2020 Item No.20/C-1 states that the entire case of the CBI is based upon the fact that the applicant started his govt, service on 11.10.1992, whereas, he actually started his service in National Productivity Council on 10.10.1990. The said aspect has been emphasised in the judgment of this Tribunal in OA No. 589/2015 and the aforesaid FIR and consequent proceedings are still pending before the competent court of law and the power of compulsory retirement on the said ground would amount to bypassing the said proceedings and presuming that the applicant is guilty of the allegations made by the CBI without the trial being complete. This has been held in a very recent judgment of the Hon'ble High Court of Delhi in the case of Govt. of NCT of Delhi & Ors. Vs. Neeraj Kumar; (2024) SCC online Del 7472.
(c) The Applicant also states that the Review Committee while taking a decision under FR 56 (j) has relied upon the aspect that the applicant was placed under suspension for a period of 7 years from 15.03.2002 to 12.10.2009. The prosecution was sanctioned on 28.06.2005 and charge- sheet for major penalty was issued on 04.06.2010. The 13 OA 372/2020 Item No.20/C-1 officer approached Hon'ble CAT against the charge-sheet. However, his contention was considered and rejected by the competent authority.
While responding to the above observations (c), the applicant states that his suspension was finally revoked when the nexus between the tenants of the wife of the applicant and DIG CBI Dr R.K. Garg was established before the competent authority. On 08.02.2017 the OA 589/2015 was decided by the CAT clearly holding that the income of the appellant from the date he joined the Govt. service and the intimations given by him as Assistant Director in NPC has not been considered by the Respondents. On the aforesaid findings, the respondents were directed to reconsider and re-examine after taking into consideration the said intimations and the income during the same period. In July 2017, the respondents again mechanically passed the order without considering the intimations given during his earlier tenure. The applicant filed O.A. 4306/2017 challenging the said order which is still pending.
(d) Applicant states the Committee considered his representation, noted that main issue raised in his 14 OA 372/2020 Item No.20/C-1 representation is that the Central Govt. while exercising powers under FR 56 (j) is not empowered to take into consideration the subject matter of any Dept. proceedings and/or the subject matter of the criminal trial and the exercise of power under FR 56 (j) is only an administrative action and therefore subordinate to the powers exercised by quasi- judicial authority. He also contended that the FIR lodged against him by the CBI on 21.02.2002 was malafide. He also states that the Committee found that the Officer has been compulsorily retired on the ground of doubtful integrity in public interest and not on the ground of ineffectiveness. The Committee further noted that the Govt. has absolute right to retire any officer under FR 56 (j) on the ground of doubtful integrity in public interest irrespective of pendency of dept/disciplinary proceedings. The order under FR 56 (j) for compulsory retirement is not held a substitute of or bar on the initiation or continuation of the dept enquiries. Further, there were enough evidence on record to suggest that the FIR lodged against the officer by CBI was not with malafide intent. The applicant had serious allegations of graft and huge amount of disproportionate assets have been found out in possession of him and his family. Hence, the Committee held that the 15 OA 372/2020 Item No.20/C-1 charges levelled against the officer were very grave in nature and following the ratio of several Hon'ble Apex Court rulings, the decision to retire the officer under FR 56
(j) was just and reasoned.
While responding to the above observations (d), applicant states that as per established norms, the integrity of the govt. servant is required to be judged by the Reporting/Reviewing Officer every year at the time of writing the ACR/APAR. It is pertinent to mention that from beginning of the career of the applicant, no allegation of corruption or the applicant being deficient on the count of integrity has ever been found by any of the various Reporting/Reviewing Officers. Further, the departmental inquiry is pending and the applicant has been retired compulsorily as a punitive measure and as a shortcut to avoid departmental inquiry.
13. Applicant contends that in the instant case, the respondents have in the impugned order dated 17/09/2019 in para 7 have stated as follows at pg. no. 15 of the OA.
"9.2.........The Committee found that the officer (the applicant) has been compulsorily retired on the ground of doubtful 16 OA 372/2020 Item No.20/C-1 integrity in public interest and not on the ground of ineffectiveness..."
14. Applicant states that from the above, it is apparent that the only ground which has been held against the applicant is "Doubtful Integrity". In this regard, he submits that the integrity of an officer is watched and assessed every year by the reporting officer as well as by the reviewing officer. He has given details of APAR in respect of his integrity in the last 11 years immediately before the passing of the impugned order wherein it has been stated that never during the above-mentioned period his integrity was rated as doubtful.
15. The applicant further states that the APAR of the applicant for the period 2018-2019 was uploaded on the APAR platform after 18.06.2019 i.e. date on which applicant was compulsorily retired. In the said APAR also, the integrity of the applicant has been certified by the competent authority by following due process of maintenance of APAR. Applicant contends that for the purposes of filling of the integrity column, there is a specific and strict procedure prescribed by the Central Government.
17OA 372/2020 Item No.20/C-1
16. To emphasise his point, the applicant states that as late as on 29th March, 2017, his work was appreciated by the Revenue Secretary and the applicant was given honorarium and was also given a reward by Directorate of Revenue Intelligence on 13th October, 2016. Further, the work of the applicant has been appreciated by Member, CBIC and President's CESTAT.
17. Applicant submits that from the record of 11 years APAR there was no material, whatsoever, to state that the integrity of the applicant was doubtful particularly when so many reporting and reviewing officers had assessed the integrity of the applicant without doubting the same as nothing adverse had come to their notice
18. The applicant contends that he was neither a dead wood nor ineffective nor there was any doubt about his integrity as his ACR grading in the last 10 years was no less than 'Outstanding' and every year, the assessing and reviewing officer had given extraordinary remarks about work of the applicant. His integrity was approved every year by the Reporting and Reviewing Officer as per the norms of the GoI and nothing adverse was found against the applicant and his integrity was marked as "Above 18 OA 372/2020 Item No.20/C-1 Board". He was rewarded and given honorarium by the Member, CBIC, Revenue Secretary, Directorate of Revenue Intelligence and CESTAT. Hence, the impugned orders are unsustainable in the eyes of law and are liable to be set aside. During the entire service of the applicant, no allegation of corruption has ever been found by any reporting/reviewing officers. Hence, the findings of the screening committee are clearly perverse and are based upon only surmises and conjectures. Applicant submits that the respondents have misused the power of FR 56 (j) to summarily get rid of employees who have filed any court case for redressal of their service grievances.
19. Shri A K Behera, Learned Senior Counsel for the applicant contends that the respondents have acted contrary to the law laid down by the Hon'ble Supreme Court in the case of Captain Pramod Kumar Bajaj vs. Union of India reported in (2023) 11 SCC 466 decided on 03.03.2023, which held as under: -
"39. Dehors the aforesaid allegations of institutional bias and malice, having perused the material placed on record, we find merit in the other grounds taken by the appellant. It is noticed that though FR 56(j) contemplates that the respondents have an absolute right to retire a government servant in public interest and such an order could have been passed against the appellant any time after he had attained the age of fifty years, the respondents did not take any such decision till the very fag end of his career. The impugned order of compulsory retirement 19 OA 372/2020 Item No.20/C-1 was passed in this case on 27th September, 2019 whereas the appellant was to superannuate in ordinary course in January, 2020. There appears an apparent contradiction in the approach of the respondents who had till as late as in July, 2019 continued to grade the appellant as 'Outstanding' and had assessed his integrity as 'Beyond doubt'. But in less than three months reckoned therefrom, the respondents had turned turtle to arrive at the conclusion that he deserved to be compulsorily retired. If the appellant was worthy of being continued in service for little short of a decade after he had attained the age of 50 years and of being granted an overall grade of 9 on the scale of 1 - 10 on 31st July, 2019 it has not been shown as to what had transpired thereafter that made the respondents resort to FR 56(j) and invoke the public interest doctrine to compulsorily retire him with just three months of service left for his retirement, in routine. In such a case, this Court is inclined to pierce the smoke screen and on doing so, we are of the firm view that the order of compulsory retirement in the given facts and circumstances of the case cannot be sustained. The said order is punitive in nature and was passed to short-circuit the disciplinary proceedings pending against the appellant and ensure his immediate removal. The impugned order passed by the respondents does not pass muster as it fails to satisfy the underlying test of serving the interest of the public."
19.1. Learned Senior Counsel contends that the Hon'ble Supreme Court laid down that in a case where there is no adverse entry in the confidential report of the employee and there is no other adverse material so as to reasonably conclude that the integrity of the employee is doubtful, the order of compulsory retirement under FR 56(j) in respect of such employee would be punitive and perverse.
20. Learned Senior Counsel for the applicant further relied upon the following judgments: -
20OA 372/2020
Item No.20/C-1
(i) The case of State of Gujarat vs. Umed Bhai M Patel reported in (2001) 3 SCC 314, wherein the Hon'ble Supreme Court held as follows: -
"11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead-
wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure.
12......As the authorities did not wait for the conclusion of the enquiry and decided to dispense with the services of the respondent merely on the basis of the allegations which had not been proved and in the absence of any adverse entries in his service record to support the order of compulsory retirement, we are of the view that the Division Bench was right in holding that the impugned order was liable to be set aside. We find no merit in the appeal, which is dismissed accordingly." 21 OA 372/2020 Item No.20/C-1
(ii) Similarly, in the case of MS Bindra vs. Union of India reported in (1998) 7 SCC 310, the Hon'ble Supreme Court held that: -
"13. While viewing this case from the next angle for judicial scrutiny i.e. want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials no reasonable man would reach such a conclusion. While evaluating the materials the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "Nemo Firut Repente Turpissimus" (no one becomes dishonest all on a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of Administrative Law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable 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. Only then there is justification to ram an officer with the label "doubtful integrity".
(iii) In the case of State of Gujarat and Anr. vs. Suryakant Chunilal Shah reported in (1999) 1 SCC 529, the Hon'ble Supreme Court held that: -
"27. The whole exercise described above would, therefore, indicate that although there was no material on the basis of which a reasonable opinion could be formed that the respondent had outlived his utility as a Govt. Servant or that he had lost his efficiency and had become a dead wood, he was compulsorily retired merely because of his involvement in two criminal case pertaining to the grant of permits in favour of take and bogus institutions. The involvement of a person in a criminal case does not mean that he is guilty. He is still to be tried in a court of law and the truth has to be found out ultimately by the court where the prosecution is ultimately conducted. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. We may, 22 OA 372/2020 Item No.20/C-1 however, hasten to add that mere involvement in a criminal case would constitute relevant material for compulsory retirement or not would depend upon the circumstances of each case and the nature of offence allegedly committed by the employee.
28. There being no material before the Review Committee, in as much as there were no adverse remarks in the character roll entries, the integrity was not doubted at any time, the character roll entries subsequent to the respondent's promotion to the post of Asstt. Food Controller (Class II) were not available, it could not come to the conclusion that the respondent was a man of doubtful integrity nor could have anyone else come to the conclusion that the respondent was a fit person to be retired compulsorily from service. The order, in the circumstances of the case, was punitive having been passed for the collateral purpose of his immediate removal, rather than in public interest. The Division Bench, in our opinion, was justified in setting aside the order passed by the Single Judge and directing reinstatement of the respondent."
(iv) In case of State of Uttar Pradesh vs. Chandra Mohan Nigam & Ors. and Union of India vs. Chandra Mohan Nigam & Ors. reported in (1977) 4 SCC 345, the operative portion of the judgment is reproduced as under: -
"29. The correct position that emerges from rule 16(3) read with the procedural instructions is that the Central Government, after consultation with the State Government, may prematurely retire a civil servant with three months' previous notice prior to his attaining 50 years or 55 years, as the case may be. The only exception is of those cases which had to be examined for the first time after amendment of the rule substituting 50 years for 55 where even officers, who had crossed the age of 50 years, even before reasoning 55, could be for the first time reviewed. Once a review has taken place and no decision to retire on that review has been ordered by the Central Government, the officer gets a lease in the case of 50 years upto the next barrier at 55 and, if he is again cleared at that point, he is free and untrammelled upto 58 which is his usual span of the service career. This is the normal rule subject always to exceptional circumstances such as disclosure of fresh objectionable grounds with regard to integrity or some other reasonably weighty reason."23 OA 372/2020
Item No.20/C-1
(v) In the case of Nand Kumar Verma vs. State of Jharkhand & Ors. reported in (2012) 3 SCC 580, the Hon'ble Supreme Court held that: -
"36. The material on which the decision of the Compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was no justification to retire the appellant compulsorily from service.
37. In Swami Saran Saksena v. State of U.P., (1980) 1 SCC 12, this Court has quashed the order of Compulsory retirement of the appellant, therein, in the public interest, which was found to be in sharp contradiction with his recent service performance and record. This Court observed:
3. ... Ordinarily, the Court does not interfere with the judgment of the relevant authority on the point whether it is in the public interest to compulsorily retire a government servant. And we have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was made on the recommendation of the High Court itself. But on the material before us we are unable to reconcile the apparent contradiction that although for the purpose of crossing the second efficiency bar the appellant was considered to have worked with distinct ability and with integrity beyond question, yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the appellant need to be examined and appraised in that context. There is no evidence to show that suddenly there was such deterioration in the quality of the appellant's work or integrity that he deserved to be compulsorily retired. For all these reasons, we are of opinion that the order of compulsory retirement should be quashed. The appellant will be deemed to have continued in service on the date of the impugned order.
38. Moreover, the District and Sessions Judge have the opportunity to watch the functioning of the appellant from close quarters, who have reported favourably regarding the appellant's overall performance except about his disposal, in the 24 OA 372/2020 Item No.20/C-1 appellant's recent ACR for the year 1997-98 and 1998-99. In view of this, the 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.
39. In Nawal Singh v. State of U.P., (2003) 8 SCC 117, this Court has observed thus:
12. ... In the present-day system, 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."
(vi) The applicant also relies upon the judgment of Hon'ble High Court of Delhi dated 24.10.2024 in the matter of Govt. of NCT of Delhi and Others Vs. Neeraj Kumar in W.P.(C) 10572/2023.
CASE OF RESPONDENTS / SUBMISSIONS MADE BY THE RESPONDENTS:
21. Counter reply has been filed by the respondents on 13.05.2022 wherein they mentioned that the Review Committee took into consideration the entire service records of the officer which includes his ACRs/APARs, charge sheet issued etc. and reached its conclusion to retire the officer under FR 56 (j) in public interest.
Accordingly, the Competent Authority compulsorily retired the applicant vide order dated 18.06.2019. 25 OA 372/2020 Item No.20/C-1
22. Shri Ravi Prakash, learned counsel for the respondents, further contended that the Review Committee examined the service records of the applicant including the APAR for FY 2000-2001 onwards and Immovable Property Returns filed by the applicant and other available records of Directorate General of Vigilance, CBIC. It is evident from para 11 to 13 of the counter affidavit that while examining the same, the Committee found that the applicant did not reveal the immovable and movable properties to the tune of Rs. 1,77,91,999/-, which he had acquired since the date of his joining the department. The alleged acquisition of assets was in excess of total income of his/family. Hence, the impugned orders were issued against the applicant and he was compulsorily retired in terms of FR 56 (j). It was stated by the respondents that the CBI has examined the submissions made by the applicant in his defence. It was also noted that the CBI search of two lockers (No. 296 & 252 at PNB, Rampur) also revealed that 43 currency packets worth around Rs.33 lacs (out of Rs.95 lacs recovered during the searches) bore stamped banks Slips of various bank Branches of Ludhiana where the applicant was posted at the time of searches. The Committee further noted that the almost all the transactions relating to the 26 OA 372/2020 Item No.20/C-1 investments in LIC policies and Relief Bonds etc. exceeded Rs.10,000/- (prior to 1990) and Rs.15,000/- (After 1990). It was noted that during the above investigation, the applicant failed to provide any intimation to the prescribed authority regarding these transactions relating to such investments as required under CCS (Conduct) Rules, 1964.
23. The Committee further noted that the CBI had also examined the details of properties acquired by the Applicant during his employment. It was noted that he had acquired four properties namely: -
a. Property under HUF at Rampur by way of inheritance (declared in his first IPR dated 28.12.1992).
b. MIG Flat at Ghaziabad for Rs 2 Lakh (declared in the IPR dated 28.12.1992). The said property was later sold by him for Rs 5,00,000/-
c. Flat in Kendriya Vihar at Noida in his own name for Rs. 8,77,799/-
d. 50% share in an industrial Shed at Ramdarbar, Chandigarh in the name of his wife for Rs 8,00,000/-. 27 OA 372/2020 Item No.20/C-1 The Applicant had acquired Management and Maintenance Rights of this property.
24. The Committee was informed that complete IPR file to ascertain the date of acquisition of properties, sources of funds and acceptance of intimations by the competent authority has not been received despite full efforts. The Committee further noted that the Applicant has declared three properties [(at Rampur through inheritance, at Noida (in his own name purchased for Rs 8,30,000/-) & at Ramdarbar, Chandigarh (50% share in the name of his wife at Rs 8,00,000)], in IPRs filed by him for the years 2016 onwards and which are available on record. The Committee observed that the CBI investigations further brought out that movable and immovable properties, except the Flat at Noida, were not revealed/declared by the Applicant to the prescribed authority. The Committee has further noted that the Applicant approached Ld. CAT stating that his representation, wherein he has given details of his income and assets acquired by him during his earlier employment with National Productivity Council were not placed before the Disciplinary Authority, thereby affecting his case 28 OA 372/2020 Item No.20/C-1 adversely. The same was considered and rejected by the competent Authority.
25. The respondents submit that Review Committee has passed reasoned order after considering the entire service record of the applicant which included ACR/APAR, charge sheet issued and has thereafter reached at the conclusion of imposition of FR 56(j). They further state that the background and sensitivity of the post that the applicant would have to take, has also been considered by the Review Committee and it has considered it to be inappropriate and not in public interest to continue the applicant in employment. The respondents contend that an employee discharges his duties in good faith and if reasonable doubt exist regarding the integrity and conduct of an employee, the employer is entitled to compulsorily retire such employee and retiral public employment would build public confidence, and incentivise transparency, higher codes of ethics, integrity and good conduct. They stated that order to compulsory retirement does not in law constitute penalty and the employee in his case also is entitled to all retiral 29 OA 372/2020 Item No.20/C-1 benefits. The order of compulsory retirement does not in any manner creates any stigma against him.
26. The respondents contend that it is also now well settled by catena of judicial precedents that compulsory retirement after the employee has put in a sufficient number of years of service having qualified for full pension is neither a punishment nor a stigma so as to attract provisions of Art. 311(2) of the Constitution. In fact, after an employee has served for 25 to 30 years and is retired on full pensionary benefits, it cannot be said that he suffers any real prejudice. The object of the rule is to weed out the dead wood and persons of doubtful integrity/credentials in order to maintain a high standard of ethics, value, efficiency and initiative in the State Services. In this regard, five judges' bench of the Hon'ble Supreme Court in its classical judgment passed in Shyam Lal v. State of U.P, 1955 1 SCR 26: AIR 1954 SC 369 held that:
"an officer who is compulsorily retired does not lose any part of the benefit that he has earned. On compulsory retirement he will be entitled to the pension etc. that he has actually earned. There is no diminution of the accrued benefit. It is said that compulsory retirement, unlike dismissal or removal, deprive the officer of the chance of serving and getting his pay till he attains the age of superannuation and thereafter to get an enhanced pension and this is certainly a punishment. It is true that wide sense the officer may 30 OA 372/2020 Item No.20/C-1 consider himself punished but there is clear distinction between the loss of benefit already earned and the loss of prospect of earning something more. In the first case it is a present and a certain loss and certainly a punishment but the loss of future prospect is too uncertain, for the officer may die or be otherwise incapacitated from serving a day longer and cannot, therefore, be regarded in the eye of law as a punishment. The more important thing is to see by compulsory retirement the officer loses the benefit he has earned as he does by dismissal or removal. The answer is clearly in the negative"
27. The Hon'ble Supreme Court in the same context, in Union of India v. M.E Reddy & Anr., 1980 (2) SCC 15 held that person compulsorily retired by the employer after putting in sufficient number of years of service having qualified for full pension is neither a punishment nor a stigma.
28. Respondents state that the applicant occupied a very senior and sensitive position in Indian Revenue Services. Continuing him on such position in such circumstances where his integrity is in question would not have been to public interest and general administration. In this regard, the Hon'ble Supreme Court in Union of India v. Colonel J.N Sinha, 1970 (2) SCC 458 held:
"9....in certain key post public Interest may require that a person of undoubted ability and integrity should be there."31 OA 372/2020
Item No.20/C-1 Further in the aforesaid context, the Hon'ble Supreme Court in Union of India v. M.E Reddy, 1980 (2) SCC 15 held:
"9...there may be cases of officers who are corrupt or of doubtful integrity and who may be considered fit for being compulsorily retired in public interest, since they have almost reached the fag end of their career and their retirement would not cast any aspersion nor does it entail any civil consequences.
xxxxxx
12. 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 which is not to penalise 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 sufficient solace and consolation from the fact that this is his small contribution to his country, for every good cause claims its martyr."
29. The respondents contend that it is a ground norm of service jurisprudence that higher the ladder the officer scaled in the echelons of service, greater should be the transparency of integrity, honesty, character and dedication to the duty. This principle would squarely apply to the present case. Considering the totality of this case, seniority of the applicant, his track record, nature of allegations made and balance service, the decision to 32 OA 372/2020 Item No.20/C-1 compulsory retire the applicant was correctly taken in public interest and to maintain purity in administration.
30. The respondents submit that the Review Committee took note of the aforesaid principles and passed a reasoned order after taking into consideration the entire service records of the Applicant including his Charge Sheets etc. In this regard, it is also noteworthy that contracts of employment are to be performed in good faith. In the present case, it is absolutely clear that the officer making representation is engrossed in several allegations of misconduct. Now, the Applicant has already completed substantial part of his service. It would be prudent and in larger public interest to retire the officer making representation and instead give opportunity to other officer(s) with better integrity and credentials.
31. The respondents submit that the contentions of applicant that FIR dated 21.2.2002 filed against him is a motivated action as the wife of applicant refused to sell her property to a tenant who was relative of a Dr. R.K. Garg, DIG, CBI, Chandigarh is incorrect, wrong and misconceived. They state that as per record, an FIR dated 21.02.2002 was filed against the applicant and one Shri 33 OA 372/2020 Item No.20/C-1 Arun Kumar Singal, Inspector, Central Excise (Perv.) Chandigarh-I by SP, DSPE, CBI, Chandigarh under Section 109, IPC, 13(1) (r) read with 13 (2) of Prevention of Corruption Act, 1988. CBI sought sanction of prosecution on 20.10.2004, CBEC agreed with the recommendation of CBI sanctioned prosecution and simultaneously initiated RDA major penalty. CVC vide OM dated 11.03.2005 advice in agreement with CBI and DG (Vigilance) to sanction prosecution RDA major penalty proceedings. The respondents contend that the Chairman CBIC vide his note dated 18.02.2003 had observed about a possible nexus between tenant of applicant's wife's property and DIG of CBI, Chandigarh and had recommended revocation of suspension of applicant needs to be looked into in view of later developments. Respondents state that on the basis of observations of the Chairman, CBIC and record of the case, disciplinary authority, i.e. Finance Minister took a considered decision to call for report from CBI keeping in view the large amount of cash recovered from the locker of the applicant. Subsequently, on the basis of CBI report and on the recommendations that revocation of suspension may hamper the investigation which was at critical stage, 34 OA 372/2020 Item No.20/C-1 competent authority decided to continue suspension of the applicant.
32. Respondents contend that as a matter of fact the entire issue relating to IPRs allegedly filed by the applicant with his previous employer i.e. NPC was first time brought to the notice of the respondent Department through a representation dated 03.10.2007 wherein it was stated that the facts regarding IPR returns from NPC regarding first two years of service has been obtained by the petitioner through RTI Act, 2005. This apparently is an afterthought as earlier in his representation dated 12.02.2006 addressed to Hon'ble Finance Minister after issuance of prosecution sanction on 28.06.2005 the applicant had not mentioned a word about the IPRs filed by him. As a matter of fact the file relating to NPC from wherein the information about IPRs was provided to the petitioner under RTI Act 2005 is missing. Further, the CBI has disputed the authenticity of these IPRs and the matter is sub-judice.
33. Respondents draw attention to the applicant filed OA No. 3652/2012 in CAT, PB, New Delhi. The CAT, PB, New Delhi vide order dated 25.10.2013 disposed of the OA with the following directions:-
35OA 372/2020
Item No.20/C-1 "During the course of hearing, Shri Behera, learned Counsel stated that he would make a comprehensive representation to the respondents espousing the plea (ibid) taken in the present Original Application. He may do so within a period of two weeks from today. In case such representation is preferred, the disciplinary authority would decide the same as expeditiously as possible preferably within a period of eight weeks from the date of receipt of the representation. Till disposal of such representation, further proceedings initiated vide Memorandum No. C-14011/9/2002-Ad.V(B) dated 4.6.2010 would remain stayed. It goes without saying that the decision to be taken by the respondents on the representation to be preferred by the applicant would be communicated to him by way of a speaking order. It is obvious that we have not decided the Original Application on merits and it would be open to the applicant to buttress the grounds raised in the present Original Application in fresh proceedings, if required, against the speaking *order to be passed."
In pursuance of the aforesaid direction of CAT, PB New Delhi, the applicant submitted a comprehensive representation on 25.11.2013. The representation of the applicant herein i.e. Shri Jain was examined in the Department and the same was disposed of with the approval of Competent Authority, as per office order No. 205/2005 dated 19.07.2005, by passing a speaking order dated 18.02.2014.
34. The applicant then filed OA No. 589/2015 before the CAT, PB, New Delhi. The said OA was disposed of by this Tribunal vide order dated 08.02.2017 which is as under:- 36 OA 372/2020
Item No.20/C-1 "20. At this stage, it may not be prudent to return any finding on the basis of alleged bias or mala fide, but there is sufficient material on record which has been ignored by the disciplinary authority while framing charge against the applicant. Despite directions of this Tribunal in OA No.3652/2012 to examine the representation, the disciplinary authority has failed to consider the specific contention about the income and assets acquired by the applicant before joining the Indian Revenue Service, and the representation has been rejected in a routine and casual manner on the basis of record of investigation without looking into the material, i.e., the record produced by the applicant before the authorities pertaining to his earlier employment, including intimations regarding the assets acquired by him. It would not be out of context to say that the applicant has not been treated fairly by the disciplinary authority while framing the charge on account of non-
consideration of the relevant material. Since the charge-sheet has already been filed by CBI In the criminal case and such proceedings being beyond the jurisdiction of this Tribunal, we do not want to delve upon that. It is for the criminal court to examine the issue on the basis of evidence before it. So far as the disciplinary proceedings are concerned, our observations are absolutely clear that the relevant material has not been considered by the disciplinary authority despite directions of the Tribunal. The Impugned order dated 18.02.2014 is thus not sustainable in law and is liable to be quashed on two counts - (i) non- consideration of relevant material despite directions of the Tribunal, and (ii) absence of any independent application of mind on such material on record.
21. This OA is accordingly disposed of with the following directions:
"Impugned order dated 18.02.2014 is hereby quashed. The matter is remitted back to the 37 OA 372/2020 Item No.20/C-1 disciplinary authority to re-consider the representation dated 25.11.2013 by taking into consideration the specific averments of the applicant regarding his income and assets acquired by him during the period of his earlier employment with National Productivity Council, which inter-alia includes the communications/information forwarded by him to the erstwhile employer regarding gifts received by him from his grandfather, including the property devolved upon him by will of his grandfather, and other properties, and the source of properties in the name of applicant's wife and minor daughter. For this purpose, the disciplinary authority will be at liberty to seek assistant of any officer or authority not associated with investigation of the case by CBI. On taking into consideration such material and examining the same, the disciplinary authority may pass appropriate order whether to initiate disciplinary proceedings against the applicant or not. Let this exercise be conducted within a period of four months. Till this exercise is completed and the disciplinary authority passes fresh reasoned and speaking order on the representation of the applicant, pending disciplinary proceedings shall remain in abeyance."
35. Pursuant to this Tribunal's order dated 08.02.2017, the matter was examined afresh. Various submissions made by the applicant herein were examined threadbare and a speaking order was passed by the disciplinary authority on Nil July, 2017 rejecting his representation dated 25.11.2013. The disciplinary authority took note of the facts that the genuineness of documents submitted by the applicant relating to intimations given by him during his earlier tenure with NPC, is in question; that the CBI 38 OA 372/2020 Item No.20/C-1 appears to have challenged the authenticity of the said documents and this issue is reported to be pending before the court for a decision; that the NPC authorities could not confirm the veracity of these documents as their concerned file could not be traced and the personal file relating to documents related to his previous service could also not be traced at NACEN (now NACIN); that the photocopies of the said documents, which suddenly surfaced at NACEN (now NACIN) in the dispatch section, were without a forwarding letter and without any enclosures; that the said documents appeared to have been planted by someone, but the identity of the person who planted these documents was not clear; that the AO and the STA concerned of NACEN (now NACIN), who had supplied these documents, although without attesting the same, to Shri Amresh Jain in reply to his RTI query, were found to have been negligent and casual and hence they were issued an administrative warning.
36. The respondents state that entire record was placed before the Review Committee and thereafter, upon perusal of entire record, the Review Committee came to the conclusion to retire the applicant in public interest and held that action under FR 56 (j) is fully justifiable. In so far 39 OA 372/2020 Item No.20/C-1 as APAR grading is concerned, the officer is not retired on the ground of ineffectiveness or adverse entries in his APARs, hence, the grading of APAR is irrelevant. The issue in the case was whether an officer with such doubtful integrity should be continued in public service or should be compulsorily retired under FR 56 (j) in the interest of public and better administration. The Committee took note of judgment of Hon'ble Supreme Court in 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."
Furthermore, it was held by Hon'ble Supreme Court in S. Ramachandra Raju vs. State of Orissa [1994 SUPPL. (2) SCR 828] that:
"9. ...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 his continuance in service would be a menace to public service and injurious to public interest."
37. Therefore, after considering all the material available on record including those relating to departmental inquiries and records of prosecution sanction of criminal 40 OA 372/2020 Item No.20/C-1 proceedings lodged by the CBI against the applicant, the Committee concluded that his conduct is such that his continuance in service would be a menace to public service and injurious to public interest.
38. The respondents state that it has also been clarified by the Review Committee that the premature retirement is not being recommended as a punitive measure and will not be a substitute of bar on initiation or continuation of the Departmental Proceedings. Thus, even if the person has been compulsorily retired under the provisions of FR 56(j), all criminal and disciplinary proceedings pending against the person will continue unabated and he will have to face all the consequences arising out of these proceedings. Thus, there is no merit in the plea of the Applicant that this short cut method has been adopted to oust him from service for no fault of his and without there being any other material which could warrant action to be taken under FR 56(j) as there is sufficient incriminating evidences against him warranting action under FR 56(j). Therefore, after considering all the material available on record (inter-alia including those relating to the departmental inquiries and records of prosecution sanction of criminal proceeding lodged by CBI) against Shri Amresh Jain, the committee 41 OA 372/2020 Item No.20/C-1 concluded that his conduct is such that his continuance in service would be a menace to public service and injurious to public interest.
39. Respondents state that no RTI appeal of the applicant to such information which was denied to him is pending. The appeal was disposed of vide order dated 16.12.2019. The respondents reiterate their stand that applicant has not been retired on the grounds of ineffectiveness or adverse entries in his APARs, therefore, elaborate citation of comments and grading in his APAR is irrelevant. They further state that findings on the integrity of the applicant was based on consideration of entire service records including APARs, IPRs filed by the applicant and other available records of Director Government of Vigilance, CBIC.
40. It is stated by the respondents that the representation of applicant dated 28.06.2019 against the order dated 18.6.2019 was referred to Representation Committee constituted vide order dated 27.08.2019. based on the complete record, the Representation Committee discussed the representation of applicant at length in the meeting on 42 OA 372/2020 Item No.20/C-1 04.09.2019 under Chairmanship of Secretary, Department of Health & Family Welfare, Government of India and the compulsory retirement order dated 18.06.2019 was issued on 17.9.2019.
41. The respondents state that before coming to the decision to invoke provisions of FR 56(j), the Review Committee examined the service records of the applicant including APARs for Financial Year 2000-2001 onwards, immovable property returns filed by the applicant and other available records of Directorate of Vigilance, CBIC. The Committee also noted that the Anti-Corruption Branch of CBI, Chandigarh had registered RC bearing No CHG HQ 2002 A 0008 on 21.02.2002 in a case relating to alleged acquisition of assets disproportionate to known sources of income by the Applicant and conducted search in his residential premises and several Bank Lockers in his own/other family member's names and materials recovered during the searches movable/immovable properties relating to the applicant and ownership of the said movable/immovable properties on the name of applicant or on the name of his family members since the date of his joining the department on 11.10.1992. The Committee was 43 OA 372/2020 Item No.20/C-1 in the knowledge of complete IPR details and date of acquisition of properties, sources of funds and acceptance of intimations by the competent authority, has not been received despite full efforts. The Committee also noted that the applicant approached this Tribunal stating that his representation, wherein he has given details of his income and assets acquired by him during his earlier employment with National Productivity Council were not placed before the Disciplinary Authority, thereby affecting his case adversely. The same was considered and rejected by the competent Authority.
42. The respondents state that it is settled principle of law that principles of natural justice do not apply to the orders passed for compulsory retirement under FR 56 (J). The Hon'ble Supreme Court in Union of India vs. Col. J. N. Sinha and Anr. [1971 SCR (1) 791] has held that:
"5. Fundamental Rule 56(j) in terms does not require that any opportunity should be given to the, concerned government servant to show cause against his compulsory retirement. A government servant serving under the Union of India holds his office at the pleasure of the President as provided in Article 310 of the Constitution."
43. It is submitted that ground norm of service jurisprudence is that higher the ladder the officer scaled in 44 OA 372/2020 Item No.20/C-1 the echelons of service, greater should be the transparency of integrity, honesty, character and dedication of the duty. This principle would squarely apply to the present case. Considering the totality of this case, seniority of the officer, his track record, nature of allegations made and balance service, the decision to compulsory retire the Applicant was correctly taken in public interest and to maintain purity in administration.
44. The Review Committee took note of the aforesaid principles and reasoned order after taking into consideration the service records of the Applicant including his charge sheet etc in entire this regard, it is also noteworthy that contracts of employment are to be performed in good faith. In the present case, it is absolutely clear that the applicant is engrossed in several allegations of mis conduct. Now, the applicant has already completed substantial part of his service. It would be prudent and in larger public interest to retire the officer making representation and instead give opportunity to other officer(s) with better integrity and credentials. Considering the gravity of charges against the officer, the Review committee was of the considered view that the officer 45 OA 372/2020 Item No.20/C-1 should be compulsory retired. The said compulsory retirement in no manner is a penalty or punitive action. The Review Committee believes that public interest would be served better if the officer is retired compulsorily. Further, the order of compulsory retirement is in no manner a penalty or a punitive action. Therefore, considering the gravity of charges against the Applicant, the Review Committee was of the considered view that the Applicant should be compulsorily retired under FR 56(j). The said compulsory retirement in no manner is a penalty or punitive action. The review committee believes that public interest would be served better if the officer is retired compulsorily.
45. Learned counsel for the respondents, in support of their contentions relied upon following judgments, which are as follows: -
(i) In the case of S. Ramachandra Raju vs. State of Orissa reported in 1994 Supp (3) SCC 424, the operative portion is reproduced as under: -
"9. It is thus settled law that though the order of compulsory retirement is not a punishment and the government employee is entitled to draw all retiral benefits including pension, 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 46 OA 372/2020 Item No.20/C-1 needs to be maintained. The exercise of power of compulsory retirement must not be a haunt on public servant but must act as a cheek and reasonable measure to ensure efficiency of service and free from corruption arid 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 in public service and injurious to public interest. The entire service record or character rolls or confidential reports maintained would furnish the back drop 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 service record more particular 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. When an officer reaching the age of compulsory retirement, as was pointed out by this Court, he could neither seek alternative appointment nor meet the family burdens with the pension or other benefits he gets and thereby he would be subjected to great hardship and family would be greatly effected. Therefore before exercising the power, the competent appropriate authority must weigh pros and cons and balance the public interest as against the individual interest. On total evaluation of the entire record of service if the government or the governmental authority forms the opinion that in the public interest the officer needs to be retired compulsorily, the court may not interfere with the exercise of such bonafide exercise of power but the court has power and duty to exercise the power of judicial review not as a court of appeal but in its exercise of judicial review to consider whether the power has been properly exercised Or is arbitrary or vitiated either by malafide or actuated by extraneous consideration or arbitrary in retiring the government officer compulsorily from service."
46. Further, learned counsel for the respondents relies upon judicial pronouncements on the following grounds. The grounds and relevant judgments are mentioned below:-
46.1 That the officer appearing in agreed list or officer of doubtful integrity can be considered for arriving at decision 47 OA 372/2020 Item No.20/C-1 of issuing compulsorily retirement order and relied upon the judgment of (a) Anup Kumar Srivastava vs. Union of India & Ors. passed by this Tribunal in OA No. 2799/2019; (b)Vinod Kumar vs. Govt. of NCT of Delhi passed by this Tribunal in OA No. 3302/2019; (c) Union of India vs. ME Reddy & Another, (1980) 2 SCC 15 passed by the Hon'ble Apex Court. The relevant portion of the above three judgments are as follows:-
(i) Anup Kumar Srivastava Vs. Union of India & Ors., OA No. 2799 of 2019, the relevant portion of the same is reproduced below:-
"17. This further brings us to the aspect of the name of an employee featuring in the Agreed List and the ODI List and whether these can also be considered for arriving at a decision to compulsorily retire a person from service. As far as the list of public servants of Gazetted status of doubtful integrity is concerned, it has the names of those officers, who after inquiry or during the course of inquiry have found to be lacking in integrity. There are various categories including the category of officers against whom proceedings for a major penalty or a court trial are in progress for alleged acts involving lack of integrity or moral turpitude. It is also in the Scheme that those officers who were prosecuted but acquitted on technical grounds and in whose cases on the basis of evidence during the trial, there remains the reasonable suspicion against their integrity, would feature in these lists. These lists are intended to keep the Ministries/Departments concerned informed about such officers of doubtful integrity to ensure that they are not posted to sensitive assignments and that this fact is given due consideration while deciding administrative matters affecting the service of these officers. It is also the purpose of these lists that these would also help the Ministries/Departments to know about the officers whose work and conduct need both, special attention and closer supervision. Similarly, those put on the Agreed List are also watched for their performance. The applicant was placed in 48 OA 372/2020 Item No.20/C-1 Agreed List in 1993-94 and thereafter again in 2011-12, 2012- 13, 2014-15 and 2015-16. He was also put on the ODI List for the years 2004-05 to 2007-08 and 2012-13 to 2016- 17. 18 This Tribunal in O.A. No. 3302/2019 (Vinod Kumar vs. Govt. of NCT of Delhi) dated 21.01.2020 opined on the ODI. The relevant paras are quoted below:
18. In Ranbir Singh's case (supra), the only fact that weighed with the Review Committee was the pendency of a criminal case. The High Court took the view that pendency of a criminal case cannot constitute a basis for invocation of FR56(j). It has already been mentioned that the fact that weighed with the Review Committee in the case of the applicant herein is the inclusion of his name in the Agreed List.
19. In Mohammad Shafi Shah's case (supra), the compulsory retirement of the employee therein was on the allegation of lack of integrity and the only basis was a pending FIR. After referring to the relevant precedents, the Hon'ble High Court viewed that FIR by itself does not constitute the basis. It has already been mentioned that the name of the applicant was included in the Agreed List and the applicant did not challenge such inclusion. When FR56(j) is invoked on the allegation of lack on integrity, the scrutiny will be relatively less.
20. Recently, in Adesh Kumar's case (supra), the Calcutta Bench of this Tribunal dealt with the identical case. The name of the applicant therein figured in the doubtful integrity list and it was found to be an adequate ground for invoking FR 56(j)"
(ii) Vinod Kumar Vs. Govt. of NCT of Delhi., OA No.3302 of 2019, the relevant portion of the same is reproduced below:-
"15. Para 5 of the OM extracted above, maintains a distinction between the compulsory retirement of an employee on the grounds of steep fall in competence, efficiency or effectiveness on the one hand and, on the ground of doubtful integrity on the other hand. The level of scrutiny in the former category of cases is indicated in detail. The instructions are clear to the effect that the various precautions stipulated for invoking the provisions against the employees on the grounds of fall in 11 competency, efficiency and effectiveness, do not apply, where 49 OA 372/2020 Item No.20/C-1 it is sought to be invoked on the doubtful integrity. The applicant could have genuine grievance, had he been compulsorily retired on the allegations of lack of competence, efficiency and effectiveness. The respondents are consistent in their stand that the applicant was retired compulsorily on the basis of the inclusion of his name in the Agreed List by the CBI. Even such inclusion cannot be said to be without any basis nor is it questioned before us.
18. In Ranbir Singh's case (supra), the only fact that weighed with the Review Committee was the pendency of a criminal case. The High Court took the view that pendency of a criminal case cannot constitute a basis for invocation of FR56(j). It has already been mentioned that the fact that weighed with the Review Committee in the case of the applicant herein is the inclusion of his name in the Agreed List."
(iii) Union of India Vs. M.E. Reddy & Another, (1980)2 SCC 15, the relevant portion of the same is reproduced below:-
"9. On a perusal of the impugned order passed by the Government of India it would appear that the order fully conforms to all the conditions mentioned in Rule 16 (3). It is now well settled by a long catena of authorities of this Court that compulsory retirement after the employee has put in a sufficient number of years of service having qualified for full pension is neither a punishment nor a stigma so as to attract the provisions of Art. 311 (2) of the Constitution. In fact, after an employee has served for 25 to 30 years and is retired on full pensionary benefits, it cannot be said that he suffers any real prejudice. The object of the Rule is to weed out the dead wood in order to maintain a high standard of efficiency and initiative in the State Services. It is not necessary that a good officer may continue to be efficient for all times to come. It may be that there may be some officers who may possess a better initiative and higher standard of efficiency and if given chance the work of the Government might show marked improvement. In such a case compulsory retirement of an officer who fulfils the conditions of Rule 16 (3) is undoubtedly in public interest and is not passed by way of punishment. Similarly, there may be cases of officers who are corrupt or of doubtful integrity and who may be considered fit for being compulsorily retired in public interest, since they have almost reached the fag end of their career and their retirement would not cast any aspersion nor does it entail any civil consequences. Of course, it may be said that if such 50 OA 372/2020 Item No.20/C-1 officers were allowed to continue they would have drawn their salary until the usual date of retirement. But this is not all absolute right which can be claimed by an officer who has put in 30 years of service or has attained the age of 50 years. Thus, the general impression which is carried by most of the employees that compulsory H retirement under these conditions involves some sort of stigma must he completely removed because rule 16 (3) does nothing of the sort."
46.2 Learned counsel for the respondents contends 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 malafides. In support of the same, the respondents relied upon the following judgments:
(i) Nisha Priya Bhatia vs. Union of India reported in (2020) 13 SCC 56;
"54. Given the factual matrix of the present case, we deem it proper to carve out some Important events from the aforementioned chain. The aforementioned sequence of events reveals the chain of internal communications in the aftermath of which the order dated 18-12-2009 was eventually passed. The secret note sent by the Secretary (R) to PMO, dated 11-5-2009, opinion of the then Solicitor General of India by Letter dated 21- 7-2009, opinion of the Department of Legal Affairs, Union Ministry of Law and Justice and the PMO note in which the Invocation of Rule 135 was determined as the only viable option, constitute together a complete chain of inquiry revealing due application of mind by the respondents into the question of compulsory retirement. 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 v. State of Jharkhand, The abovequoted set of events are so eloquent that it leaves us with no other conclusion but to hold that the action of compulsory retirement was the just option. Assuming that some other option was also possible, it would not follow that the decision of the competent authority to compulsorily retire the appellant was driven by extraneous, malicious, perverse, unreasonable or arbitrary considerations. The prerequisite of due application of mind seems to be fulfilled 51 OA 372/2020 Item No.20/C-1 as the decision has been reached in the aftermath of a series of discussions, exchanges and consultations between the Organisation and the PMO over the course of 15 months from 22- 9-2008 to 18-12-2009.
73. The decision to retire an officer compulsorily is purely an executive function exercised in light of the prevailing circumstances. The scrutiny by the Court is restricted to an examination of whether such order is smitten by mala fides or extraneous considerations. Once such order is upheld in a court of law in its entirety, as the High Court rightly did, there is no question of altering or modifying the technical aspects of such order, including the date from which it should be given effect. The usage of words "immediate effect" makes it amply clear that the order of compulsory retirement was meant to take effect immediately and the date of such order could not have been postponed by a court of law in the garb of exercising power of judicial review. To do so without any legal basis, could lead to abhorrent consequences into a spiral of issues, including putting to jeopardy the principle of conclusively of the decision. Even if we assume that the Court intended it as an equitable measure, we are of the view that the same could have been achieved without postponing the date of retirement. Sub- rule (2) of Rule 135 of the 1975 Rules categorically provides for the calculation of pension as per the date of notional superannuation as well as for the earned promotions. However, despite our disapproval for this approach, in the peculiar facts of this case, we stop short of modifying the High Court's order as regards postponement of date of retirement as the same has not been assailed by the respondents and instead has been complied with sans any demur."
(ii) Ram Murti Yadav vs. State of UP reported in (2020) 1 SCC 801;
"6. The service records of the appellant have been examined by the Screening Committee, the Full Court as also by the Division Bench of the High Court. The scope for judicial review of an order of compulsory retirement based on the subjective satisfaction of the employer is extremely narrow and restricted. Only if it is found to be based on arbitrary or capricious grounds, vitiated by malafides, 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."52 OA 372/2020
Item No.20/C-1 46.3 Learned counsel for the respondents further submits that compulsory retirement under Rule FR 56 (j) is not punitive in nature. In support of the same, the respondents rely upon the judgment of;
(i) Hon'ble Apex Court in Arun Kumar Gupta vs. State of Jharkhand reported in (2020) 13 SCC 355
6. A three Judge Bench in Baikuntha Nath Das v. Chief Distt. Medical Officer3 dealing with the concept of compulsory retirement laid down the following principles:
"34. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment.
It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary -- in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter -- of course attaching more importance to record of and performance during 2 (1999) 1 SCC 529 3 (1992) 2 SCC 299 the later 53 OA 372/2020 Item No.20/C-1 years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favorable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.
Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above."
7. In Chandra Singh v. State of Rajasthan4, though this Court came to the conclusion that the compulsory retirement awarded to the applicant was not in consonance with the law, it did not give relief to the petitioner on the ground that even under Article 235 of the Constitution of India, the High Court can assess the performance of any judicial officer at any time with a view to discipline the black sheep or weed out the dead wood. This Court held that this constitutional power of the High Court is not circumscribed by any rule. Reference may be made to paras 40 and 47 of the judgment:
"40. Article 235 of the Constitution of India enables the High Court to assess the performance of any 4 (2003) 6 SCC 545 judicial officer at any time with a view to discipline the black sheep or weed out the deadwood. This constitutional power of the High Court cannot be circumscribed by any rule or order.
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47. In the instant case, we are dealing with the higher judicial officers. We have already noticed the observations made by the Committee of three Judges. The nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility."
10. In Rajendra Singh Verma v. Lt. Governor (NCT of Delhi) , this Court was dealing with the compulsory retirement of a judicial officer from the Delhi Higher Judicial Service. It was held that if the authority bona fide forms an opinion that the integrity of a particular officer is doubtful and it is in public interest to compulsorily retire such judicial officer, judicial review of such order should be made with great care and circumspection. It 54 OA 372/2020 Item No.20/C-1 was specifically observed that when an order of compulsory retirement is passed, the authority concerned has to take into consideration the whole service record of the concerned officer which could include no communicated adverse remarks also. It would be apposite to refer to the following observations of this Court:
"218. On a careful consideration of the entire material, it must be held that the evaluation made by the Committee/Full Court, forming their unanimous opinion, is neither so arbitrary nor capricious nor can be said to be so irrational, so as to shock the conscience of this Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions, a vast range of multiple factors play a vital and important role and no one factor should be allowed to be blown out of proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. In the very nature of things, it would be difficult, nearing almost an impossibility 7 (2011) 10 SCC 1 to subject such exercise undertaken by the Full Court to judicial review except in an extraordinary case when the Court is convinced that some real injustice, which ought not to have taken place, has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court.
219. Viewed thus, and considered in the background of the factual details and materials on record, there is absolutely no need or justification for this Court to interfere with the impugned proceedings. Therefore, the three appeals fail and are dismissed. Having regard to the facts of the case, there shall be no order as to costs."
(ii) Union of India vs. ME Reddy & Another, (1980) 2 SCC 15, the relevant portion of the same reads as under:
"12. 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 sufficient solace and consolation from the fact that 55 OA 372/2020 Item No.20/C-1 this his small contribution to his country, for every good cause claims its martyr."
46.4 Learned counsel for the respondents submits that this Tribunal cannot go into the adequacy of material on the basis of which the order compulsorily retiring is issued and it is an absolute right of the Central Govt. to retire any officer in public interest. In support of the same, the respondents rely upon the judgment of Hon'ble High Court and this Tribunal
(i) Ashok Kumar Agarwal vs. Union of India & Ors. in OA No. 1835/2020, the relevant portion of which reads as under:
"23. The verification, in matters of this nature, would be as to whether there existed any material at all to enable the appointing authority, to form the opinion, which of course, is nothing but subjective satisfaction. The Tribunal, however, cannot go into the adequacy of the material."
(ii) Ashok Kumar Agarwal vs. Union of India & Ors, W.P. (C) No.11177 of 2020, the relevant portion of which reads as under:
31. This decision of the Review Committee is an absolutely independent proceedings and looking to the overall service record of the Petitioner, this subjective satisfaction has been arrived at by the Review Committee.
There is no allegation of personal malafide upon the members of the Review Committee. What is contended by learned Senior Counsel for the Petitioner is legal malice by the Respondents because of certain observations made by 56 OA 372/2020 Item No.20/C-1 the competent Courts in the litigation by the Petitioner against the Respondents.
40. Compulsory retirement has various facets. Compulsory retirement can be passed looking to the overall service record of the Government employee. Compulsory retirement order can also be passed in public interest with a view to improve efficiency of the administration or to weed out people of doubtful integrity or corrupt employee but sufficient evidence was not available to take disciplinary action in accordance with the rules, so as to inculcate a sense of discipline in the services. Thus, even if for this petitioner, the departmental charges have been quashed and set aside and the sanction granted for prosecution in two criminal cases have been quashed and set aside, still the Respondents can pass an order for compulsory retirement of the Petitioner.
46.5 Learned counsel for the respondents submits it is an absolute right of the Central Govt. to retire any officer in public interest. In support of the same, the respondents rely upon the judgment of Hon'ble High Court and this Tribunal.
(i) Ashok Kumar Agarwal vs. Union of India & Ors. in W.P. (C) No. 11177/2020, the relevant portion of which reads as under:
19. 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 1965 SC 280. 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.
20. It has been held in the aforesaid decision by 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.57 OA 372/2020
Item No.20/C-1
21. 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 in Nisha Priya Bhatia vs. UOI & Anr. (Supra) in paragraphs, 33,40,42,43 as under:-
- 33. Further, it is pertinent to note that the grounds referred to in Rule 135 nowhere contemplate it as a consequence of any fault or wrongful action on the part of the officer and unlike penal actions, do not stigmatise the outgoing officer or involve loss of benefits already earned by him and there is no element of punishment. Sub-rules (2), (3) and (4) of Rule 135 reinforce this view as the same provide for appropriate benefits such as pension, gratuity, lump sum amount, etc. for the public servant who has been subjected to compulsory retirement. Thus, the employee is not faced with any loss of benefits already earned. We say so because the examination of the characteristics of such a rule is not focussed around the motive or underlying intent behind its enactment, rather, it lies in the consequence and effect of the operation of such a rule on the outgoing employee. 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 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, (1971) 2 SCC 514] 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). We may usefully refer to Dalip Singh v. State of Punjab [Dalip Singh v. State of Punjab, AIR 1960 SC 1305] and Union of India v. Dulal Dutt [Union of India v. Dulal Dutt, (1993) 2 SCC 179 : 1993 SCC (L&S) 406] to bring home the stated position of law.
xxx xxx xxx
40. We also deem it necessary, at this juncture, to note that the mere fact of non-prescription of inquiry under Rule 135 of the 1975 Rules, 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 the larger public interest and security of the Organisation; and not any culpable conduct of the 58 OA 372/2020 Item No.20/C-1 employee. Moreover, Rule 135 incorporates a language that is self-guiding in nature. The usage of words ―exposure‖ and ―unemployability for reasons of security‖ are not insignificant, rather, they act as quintessential stimulants for the competent authority in passing such order. The mandatory determination of what amounts to an exposure or what renders an employee unemployable due to reasons of security under Rule 135, is both a precondition and safeguard, and incorporates within its fold the subjective satisfaction of the competent authority in that regard. In order to reach its own satisfaction, the authority is free to seek information from its own sources. Thus, in cases when the ingredients of Rule 135 stand satisfied in light of the prevalent circumstances, the need for giving opportunity to the officer concerned by way of an inquiry is done away with because the underlying purpose of such inquiry is not the satisfaction of the principles of natural justice or of the officer concerned, rather, it is to enable the competent authority of the Organisation to satisfy itself in a subjective manner as regards the fitness of the case to invoke the rule. Therefore, the procedure underlying Rule 135 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.
xxx xxx xxx
42. A conjoint reading of Articles 309 and 311 reveals that Article 311 is confined to the cases wherein an inquiry has been commenced against an employee and an action of penal nature is sought to be taken. Whereas, Article 309 covers the broad spectrum of conditions of service and holds a wider ground as compared to Article 311. That would also include conditions of service beyond mere dismissal, removal or reduction in rank. It holds merit to state that this wide ground contemplated under Article 309 also takes in its sweep the conditions regarding termination of service including compulsory retirement. In Pradyat Kumar Bose v. Chief Justice of Calcutta High Court [Pradyat Kumar Bose v. Chief Justice of Calcutta High Court, AIR 1956 SC 285] , this Court touched upon the ambit and scope of Article 309 of the Constitution and expounded that the expression ―conditions of service‖ takes within its sweep the cases of dismissal or removal from service.
43. We further note that generally it is correct to say that the rules governing conditions of service, framed under Article 309, are subject to other provisions of the Constitution, including Article 311. The opening words of Article 309 -
59OA 372/2020 Item No.20/C-1 ―Subject to the provisions of this Constitution‖ -- point towards the same analogy. However, this subjection clause shall not operate upon the rules governing compulsory retirement. For, the legal concept of compulsory retirement, as discussed above, is a non-penal measure of the Government and steers clear from the operation of Article 311, unless it is a case of removal or dismissal clothed as compulsory retirement. Had there been a rule providing for removal, dismissal or reduction in rank, it would have been controlled by the safeguards under Article 311. It has also been observed in State of U.P. v. Babu Ram Upadhya [State of U.P. v. Babu Ram Upadhya, AIR 1961 SC 751 : (1961) 1 Cri LJ 773] that the validity of a rule shall be hit by Article 311 only if it seeks to affect the protection offered by Article 311, and not otherwise as in the present case.‖ (emphasis supplied)
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.
51. 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 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."
60OA 372/2020 Item No.20/C-1 EXAMINATION AND ANALYSIS
47. It is to state that FR 56 (j) absolutely empowers the appropriate authority to compulsorily retire a government employee in Group 'A' service after he attained 50 years of age. In the present case of applicant, the Review Committee was constituted in terms of FR 56 (j) which considered the entire service records of the applicant (Shri Amresh Jain) and recommended him to be compulsorily retired in public interest. The Central Government considering the recommendations of Review Committee compulsorily retired the applicant with effect from 18.6.2019. On 01- 7-2019, representation against the order dated 18-6- 2019 was received. On 28-8-2019, the aforesaid representation of the applicant was forwarded to the Representation Committee which was constituted on 27.8.2019. The Representation Committee considered the representation of the applicant on 04.09.2029, perused the order dated 18.6.2019, minutes of the Review Committee, the entire service record of the applicant and other documents and records considered 61 OA 372/2020 Item No.20/C-1 by the Review Committee to arrive at the conclusion that no interreference is required to be made in the order dated 18.6.2019. The respondents communicated the conclusion of the Representation Committee. Observations of the Representation Committee via-a-vis representation dated 28.6.2019 (received on 01.7.2029) and reasons recorded in the minutes of the meeting dated 04.09.2019 were conveyed to the applicant vide letter dated 17.9.2019. The Observations of the Representation Committee are as under: -
"9.1 The Committee noted that the Review Committee found the case of the Officer Shri Amresh Jain, a fit case for action under FR 56(j), inter alia, for the reasons that;
(a) The Officer was placed in Agreed list for the years 2003- 04, 2004- 05 and 2005-06 and thereafter in ODI List from 2006-07 onwards to 2018-19.
(b) The CBI had registered a case of disproportionate assets against the Officer and found that there was an excess of his/family total income by 459%. He had acquired several movable/immovable properties since the date of his joining the department on 11.10.1992 and these properties were registered in his own, his wife's or his daughter's name. CBI investigations further brought out the fact that except the flat at Noida, no movable/ immovable was revealed/ declared by the Officer to the Prescribed Authority.
(c) The officer was placed under suspension for a period of 7 years from 15.03.2002 to 12.10.2009. The prosecution was sanctioned on 28 06.2005 and charge sheet for major penalty 62 OA 372/2020 Item No.20/C-1 was issued on 04.06.2010. The Officer had approached Hon'ble Tribunal against the charge sheet. However, his contention was considered and rejected by the competent authority 9.2 The Committee considered the representation of the Officer, and noted that main issue raised in his representation is that the Central Government while exercising powers under FR 56(j) is not empowered to take into consideration the subject matter of any Departmental Proceedings and/or the subject matter of the Criminal Trial and that the exercise of power under FR 56 (1) is only an administrative action and therefore subordinate to powers exercised by Quasi Judicial Authority. He also contended that the FIR lodged against him by the CBI on 21.02.2002 was mala-fide. The Committee found that the Officer has been compulsorily retired on the ground of doubtful integrity in public interest and not on the ground of ineffectiveness. The Committee further noted that the Government has absolute right to retire any officer under FR 56 (j) on the ground of doubtful integrity in public interest irrespective of pendency of departmental/disciplinary proceedings. The order under FR 56
(j) for compulsory retirement is not held a substitute of or bar on the initiation or continuation of the Departmental enquiries.
Further, there were enough evidence on record to suggest that the FIR lodged against the officer by CBI was not with mala-fide intent. Shn Amresh Jain had serious allegations of graft and huge amount of disproportionate assets have been found out in possession of him and his family. Hence, the Committee held that the charges levelled against the Officer were very grave in nature and following the ratio of several Hon'ble Apex Court rulings, the decision to retire the officer under FR 56 (i) was just and reasoned"
8. Appropriate Authority has accepted the observations of Representation Committee as mentioned in Para 7 above and accordingly disposed off the representation dated 28.06 2019 submitted by Shri Amresh Jain."63 OA 372/2020
Item No.20/C-1
48. 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) and for the sake of brevity, principles enunciated above are not reproduced here. 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 64 OA 372/2020 Item No.20/C-1 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 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. It has been stated in the pleadings that the applicant was placed on the Agreed list for the years 2003-04, 2004-05 and 2006-06. Thereafter, he was in the ODI list from the year 2006-07 onwards to 2018-19. 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 stand of the applicant that such lists are drawn in routine manner 65 OA 372/2020 Item No.20/C-1 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 was kept on agreed list for considerable and ODI list for a long time and respondents are consistent in their stand that the applicant was retired compulsorily on the basis of inclusion of his name in the Agreed list by the CBI. 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 fall in his competence, efficiency or effectiveness but on the grounds 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 observed that the plea of acquisition of assets under controversy on the name of applicant, his wife and daughter, before 1992 (i.e. before joining the present service) has not been effectively addressed by the 66 OA 372/2020 Item No.20/C-1 applicant and his stand has varied at different point in time. The respondents in their counter reply have brought out this aspect and have vehemently contested the audacity of such documents. We tend to agree with the pleadings of respondents.
49. Applicant placed reliance on the judgement of Hon'ble Supreme Court in the case of Captain Pramod Kumar Bajaj vs. Union of India decided on 03.03.2023, 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 18.6.2019 on the grounds of doubtful integrity in public interest. The applicant is now 55 years of age. Further, in his prayers, applicant does not allege any malafide / bias on the part of respondents. As 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 18.6.2019 is an order simplicitor and cannot be termed as 67 OA 372/2020 Item No.20/C-1 punitive in nature as it does not cast any aspersion on the applicant not is construed as a short cut method.
50. 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 18.6.2019 on already attaining age of 50 years. Hence, the law laid down in the above judgement is not attracted in this case.
51. 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 justification to ram an officer with the label "doubtful integrity. In this case, we find that sufficient material is available with the 68 OA 372/2020 Item No.20/C-1 respondents which have been deliberated at length before the competent authorities came to the decision to invoke FR 56 (j) on the applicant.
52. 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 69 OA 372/2020 Item No.20/C-1 basis. We are of the view that the overall service record of the 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.
53. 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.
54. 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 70 OA 372/2020 Item No.20/C-1 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 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.
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55. 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 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. 72 OA 372/2020 Item No.20/C-1 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 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 73 OA 372/2020 Item No.20/C-1 of Punjab, and Union of India v. Dulal Dutt [Union of India v. Dulal Dutt.
56. 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 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 74 OA 372/2020 Item No.20/C-1 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.
57. 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 pensionary and other benefits and on the 75 OA 372/2020 Item No.20/C-1 other gives a new animation and equanimity to the services.
58. 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."
59. The respondents have mentioned that it was also in the knowledge of the Committee that the CBI, during the aforementioned searches, recovered cash in the amount of Rs 95,24,000/- and jewelry worth Rs 10,51,854/-. The alleged acquisition of assets to the tune of Rs 1,77,91,199 was in excess of his family total income of Rs 33,81,913 by Rs 1,55,09,518/- i.e. by 459%. The Committee was also aware that the Applicant was arrested by the CBI on 23.02.2002 and placed under deemed suspension on 76 OA 372/2020 Item No.20/C-1 15.03.2002 and continued to be under suspension till 12.10.2009, prosecution of the applicant was sanctioned on 28.06.2005 and charge sheet for major penalty was issued on 04.06.2010. The Committee was also aware of cash received during the CBI search of two lockers (No.296 & 252 at PNB, Rampur) which revealed that 43 currency packets worth around Rs 33 Lakh (out of 95 Lakh recovered during the searches) bore stamped Bank Slips of various bank branches of Ludhiana where the Applicant was posted at the time of searches were found. Further, the during the investigation, the Applicant failed to provide any Intimation to the prescribed authority regarding these transactions relating to such investments as required under CCS (Conduct) Rules, 1964. The Committee further noted that the CBI had also examined the details of properties acquired by the Applicant during his employment.
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60. In view of aforementioned position, we are of the view that the Original Application is devoid of merits and accordingly dismissed.
61. Pending MAs, if any, stand closed. No order as to cost.
(Rajinder Kashyap) (Justice Ranjit More)
Member (A) Chairman
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