Central Administrative Tribunal - Lucknow
Alok Kumar Mitra vs Union Of India on 20 February, 2023
Page 1 of 20
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
LUCKNOW
Original Application No. 332/00450 /2019
Order reserved on 12.01.2023
Order pronounced on 20.02.2023.
CORUM:
Hon'ble Mr. Justice Anil Kumar Ojha, Member-J
Hon'ble Mr. Devendra Chaudhry, Member-A
Alok Kumar Mitra, aged about 52 years son of Late Bimal Chandra Mitra,
R/o 155, Rajendra Nagar, Lucknow-226004.
.....APPLICANT
By Advocate: Sri Shireesh Kumar
VERSUS
UNION OF INDIA, through the Secretary, Ministry of Finance, Department
of Revenue, Government of India, North Block, New Delhi - 110001
............ Respondents
By Advocate: Sri Hanu Bhaskar alongwith Ms. Prayagmati Gupta
ORDER
Delivered by: Hon'ble Mr. Justice Anil Kumar Ojha, Member-J Heard Sri Shireesh Kumar, learned counsel for the applicant, Ms. Prayagmati Gupta, learned Sr. Standing Counsel, Sri Hanu Bhaskar, learned counsel for the respondents and perused the records.
Challenge in this O.A is the order dated 10.06.2019 and 16.08.2019 (Annexure A-1 and A-7) respectively whereby applicant has been compulsorily retired from Indian Revenue Service invoking Fundamental Rule 56(j) from the post of Commissioner, Income Tax with further prayer for reinstatement of the applicant in the service with all consequential service benefits such as continuity in service, arrears of salary, seniority and pay protection etc. Page 2 of 20 Tersely put the case of the applicant is that the applicant is an officer of Indian Revenue Service of 1992 batch. Applicant was promoted upto Commissioner of Income Tax. Applicant was compulsorily retired invoking Fundamental Rule 56(j).
There is no statutory provision regulating the procedure for compulsory retirement but the Government of India, from time to time, issued office memorandums laying down the conditions and guidelines for regulating the procedure for invoking the provisions of Fundamental Rule 56(j).
Further averment is that applicant all along has been an honest, devoted and dedicated officer. Impugned order dated 10.06.2019 retiring the applicant compulsorily has not been passed in public interest as mandatory under Fundamental Rule 56 (j). Order dated 10.06.2019 is incompetent and legally a nullity as neither the Central Vigilance Commission was consulted nor the recommendation was made by the Civil Services Board as well as approval by the Cabinet Committee of Appointment was neither sought nor granted. The impugned order has been passed without any evidence.
Applicant has been assigned important, challenging and sensitive works. The impugned order suffers from legal malice. Neither the integrity of the applicant was ever questioned nor his effectiveness was ever doubted, so the order dated 10.06.2019 is without any basis. The candidature of the applicant was not picked up for screening at the appropriate age. The entire action against the applicant, compulsorily retiring him from service and passing of orders dated 10.06.2019 and 16.08.2019 are illegal, arbitrary, discriminatory and malafide.
Not even a show cause notice or a departmental enquiry was in existence against the applicant. Representation of the applicant dated 30.06.2019 has been wrongly rejected. ACR/ APARs of the applicant were not requisitioned before taking decision. Complete service record dossiers of the applicant have not been considered. Overnight applicant cannot be dead wood as prior to the impugned order dated 10.06.2019, applicant was on sensitive posting. Action of the respondent is in violation of law laid down by the Hon'ble Apex Court in the case of Umed Bhai, Rajendra Singh Verma etc. Page 3 of 20 Hence, this O.A. The applicant referred the following authorities:
(i) Baldev Raj Chaddha Vs. Union of India, 1980 (4) SCC 321.
(ii) Nagpur Improvement Trust Vs. Y.J. Kumbhare, 1999 (8) SCC 99.
(iii) UoI Vs. Charanjeet Singh Gill, 2000(5) SCC 742.
(iv) Ashok Kumar Srivastava Vs Ram Lal, 2008(3) SCC 148.
(v) Rajendra Singh Verma Vs. Lt. Governor of Delhi, 2011 (10) SCC 1.
(vi) State of U.P. Vs. Chandra Mohan Nigam, 1977 (4) SCC 345.
(vii) Ghanshyam Mishra Vs. State of U.P, in W.P No. 45254 of 2017 decided on 09.05.2019.
(viii) State of Gujrat, Vs. Suryakant Chunilal Shah, 1999 (1) SCC 529.
(ix) State of Gujarat Vs. Umedbhai M. Patel, 2001 (3) SCC 314.
(x) Rajesh Gupta Vs. State of J & K, 2013 (3) SCC 514.
(xi) Bahadursingh Lalhubhai Gogil Vs Jagdishbhai M. Kamalia, 2004 (2) SCC 65.
(xii) Ratnagiri Gas and Power Ltd. Vs. R.D.S Projects, 2013 (1) SCC 524.
Respondents by filing Counter Affidavit have, interalia, stated therein that Review Committee recommended the case of the applicant for compulsory retirement after examining the entire service records of the applicant. Before recommending the order under Fundamental Rule 56 (j) the Review Committee took into consideration the applicant's ACR/APARs, charge sheet issued etc. and reached its conclusion to retire the officer.
Review Committee considered the gravity of charges and allegations made against the officer for a major part of his career. Order was passed on the basis of opinion formed on the basis of facts on records wherein the conduct of the officer raised serious doubts about the integrity of the applicant.
Hon'ble Supreme Court in the case of S. Ramachandra Raju Vs. State of Orissa, 1994 Suppl. (2) SCR 828 has held that "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."
Page 4 of 20Review Committee was of the view that the conduct of the applicant was such that his continuance in service would be menace to public service and injurious to public interest.
There is no bar on the consideration of an officer for action under 56 (j) even after completing the age of 50 years. Limitation of five years or so for considering the entries in APARs does not apply, if the compelling reasons to retire under rule 56 (j) rest on integrity. It is not necessary for ACC appointees to be compulsorily retired only after approval of the ACC.
Review Committee headed by Secretary of the concerned department can recommend compulsory retirement. In the present case, Review Committee consisted of the Secretary of Department of Revenue and Chairman, CBDT, as such, there is no breach/ violation of any O.M or any circular.
It has been further alleged that in the instant case Internal Committee which sent its recommendation to the Review Committee consisted of DGIT (Vigilance)/ CVC as well as DGIT HRD and ADG (Vigilance). Therefore, contention of the applicant that CVC was not consulted is not sustainable.
It has been alleged that Rule 56 (j) Fundamental Rule permits the appropriate authority to retire any government servant after attaining the age of 50 years or after completing the 25 years of qualifying service and the rule prescribes a starting point, which is the attaining of the age of 50 years or the completion of 25 years of service but it does not prescribe a terminus ad quam and it is therefore, open to the appropriate authority under the rule to consider the case of a government servant for premature retirement at any time after the aforementioned starting points.
Government has the authority to retire the government employee in the public interest before the normal date of retirement with a view to strengthen the administrative machinery. Review Committee recommended the invoking of Rule 56 (j) against the applicant.
Page 5 of 20Representation Committee considered the issues raised by the applicant and found that the procedure adopted by the Review Committee has been prescribed in DoPT's O.M. No. 25013/01/2013-Estt.A-IV dated 11.09.2015. In the aforesaid O.M., it is not necessary for ACC appointees to be compulsorily retired only after approval of ACC.
It has been further alleged that as per DoPT O.M No. 25013/14/77-Estt.(A) dated 05.01.1978, Government has the absolute power under Fundamental Rules and CCS (Pension) Rules, 1972, to retire a government employee in the public interest before the normal date of retirement with a view to strengthening administrative machinery at all levels.
Committee after considering all the material available on record against the applicant and taking holistic view of the record of the officer, concluded that applicant's conduct is such that his continuance in service would be a menace to public service and injurious to public interest and the services of the applicant are no longer useful to the general administration.
The premature retirement of the applicant under Rule 56 (j) is not punitive in nature so it cannot be considered as punishment under Article 311 of the Constitution of India.
There was no prejudice or arbitrariness in compulsorily retiring the applicant. There was no violation of any O.M/ circular. O.A lacks merits and is liable to be dismissed.
The respondent has referred the following authorities:
(i) Shyam Lal vs. The State of Uttar Pradesh and Ors, AIR 1954 SC 369.
(ii) Union of India vs. J.N. Sinha and Ors. (1970) 2 SCC 458.
(iii) Union of India and Ors. vs. M.E. Reddy and Ors. (1980) 2 SCC 15.
(iv) S. Ramachandra Raju vs. State of Orissa, (1994) Supp (3) SCC 424.
(v) Vinod Kumar vs. GNCTD & Ors. OA No. 3302/2019.
(vi) Arun Kumar Gupta VS. State of Jharkhand & Ors. AIR 2020 SC 1175.Page 6 of 20
(vii) Parbodh Sagar vs. Punjab State Electricity Board and Ors.
(2000) 5 SCC 630
(viii) K. Kandaswamy Vs. Union of India, (1995) 6 SCC 162.
(ix) Pyare Mohan Lal vs. State of Jharkhand and Ors. AIR 2010 SC 3753.
(x) Nisha Priya Bhatia vs. Union of India & Ors. C.A. No. 2365 of 2020.
(xi) Ram Murti Yadav vs. State of Uttar Pradesh & Ors. (2020) 1 SCC 801.
(xii) Baikunthanath Das & Ors. VS. Chief District Medical Oficer, Baripada & Ors. (1992) 2 SCC 299.
(xiii) Ashok Kumar Aggarwal vs. UOl and Ors. W.P. (C) No. 11177/2020.
Applicant has filed rejoinder affidavit stating, interalia, therein that respondents have admitted that no undue benefit was taken by Sahara Group and for an act/benefit which never materialized the applicant cannot be held guilty. The respondents have not disclosed as to how the applicant was related to this matter and what omission and commission was committed by him.
The alleged charge sheet dated 15.07.2013 has already been quashed by this Tribunal. Despite quashing of the chargesheet, contents of the charge sheet are being used against the applicant which is not sustainable. Charge sheet has been quashed on merits and not on technical grounds.
It has been further alleged that complaint dated 24.02.2003 allegedly made against the applicant and Mrs. Archana Chaudhary was never confronted to the applicant. Respondents did not find any merit in the aforesaid complaint so complaint dated 24.02.2003 was having no relevance in the present matter.
It has also been alleged that report dated 10/11.12.2002 of Directorate of Income Tax (Investigation) Kanpur was never shared with the applicant and the applicant was not aware of any such report. Report dated 10/11.12.2002 cannot be a basis for considering the candidature of the applicant for action under FR 56 (j) as respondents did not find aforesaid report adverse to the applicant. Respondents are attaching unnecessary motives to the report Page 7 of 20 dated 10/11.12.2002 which is a nullity for the aforesaid reason. Applicant was never informed of any report made to DIT (Vigilance) in this regard. Department dropped its proceedings on its own volition, way back in the year 2008 in the aforesaid matter.
It has been further averred that as no knowledge of any complaint dated 23.09.2002 was shown to the applicant. There were only vague allegations not supported by any evidence or material and never confronted to the applicant so from these nothing can be established against the applicant for taking action under FR 56 (j).
It is false to state that applicant failed in his supervisory duty as applicant had no administrative or disciplinary control over Mrs. Renu Biswas. Review Committee deliberately ignored the excellent service record of the applicant. It has also been alleged that absolute power of the government should not be confused with uncontrolled, unrestricted and unbridled power and exercise of power under FR 56 (j) has to be within the confines of the law settled by the Hon'ble Supreme Court and procedural safeguards provided through various office memorandums by the Central Government.
O.A deserves to be allowed.
Learned counsel for the applicant submitted that applicant has been compulsorily retired without any evidence against him with regard to his integrity. The impugned order suffers from legal malice as applicant had been assigned important and sensitive works during his tenure as Commissioner of Income Tax. The action of the respondents is arbitrary and malafide. Impugned order has not been passed in public interest.
Further submitted the Review Committee has no competence to compulsorily retire or recommend the applicant for compulsorily retirement. Even ACRs/ APARs of the applicant were not requisitioned. Entire service record of the applicant has not been reviewed. Applicant cannot be termed as dead wood overnight as prior to compulsory retirement, he was holding charge of sensitive post.
Page 8 of 20Per contra, learned counsel for the respondents vehemently countered the aforesaid submissions and urged that there were several complaints against the applicant. Even charge sheet was also issued against him. Entire service record of the applicant was considered. There was sufficient material to invoke Fundamental Rule 56 (j). Process for reaching the conclusion to retire the applicant compulsorily was followed.
Further submitted that this Tribunal is not siting in appeal and is making the judicial review of the impugned orders only. Under the judicial review, decision making process and not the decision itself can be looked into.
Further urged that in Writ-A No. 24856 of 2020, Capt. Pramod Kumar Bajaj Vs Union of India, the Hon'ble Allahabad High Court, Lucknow Bench considered the points raised by the applicant and upheld the order of compulsory retirement. O.A is devoid of merits and deserves dismissal.
Considered the submissions of the learned counsel for the parties.
Rule 56 (j) of the Fundamental Rule runs as follows:
56(J) Notwithstanding anything contained in this rule, the Appropriate Authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice:
(i) If he is, in Group 'A' or Group 'B' service or post in a substantive, quasi-permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years;
(ii) in any other case after he has attained the age of fifty-five years;
Provided that nothing in this clause shall apply to a Government servant referred to in clause (e), who entered Government service on or before the 23rd July, 1966.
(jj) (i) If on a review of the case either on a representation from the Government servant retired prematurely or otherwise, it is decided to reinstate the Government servant in service, the authority ordering reinstatement may regulate the intervening period between the date of premature retirement and the date of reinstatement by the grant of leave of the kind due and admissible, including extraordinary leave, or by treating it as dies non depending upon the facts and circumstances of the case:
Page 9 of 20Provided that the intervening period shall be treated as a period spent on duty for all purposes including pay and allowances, if it is specifically held by the authority ordering reinstatement that the premature retirement was itself not justified in the circumstances of the case, or, if the order of premature retirement is set aside by a Court of Law.
(ii) Where the order of premature retirement is set aside by a Court of Law with specific directions in regard to regulation of the period between the date of premature retirement and the date of reinstatement and no further appeal is proposed to be filed, the aforesaid period shall be regulated in accordance with the directions of the Court."
DoPT has issued O.M. No. 25013/1/2013-Estt (A) dated 21.03.2014 and O.M. No. 25013/01/2013-Estt. A-IV dated 11.09.2015 for strengthening of administration -Periodical Review under FR 56 (j) and Rule 48 of CCS (Pension) Rules, 1972 which provide as follows:
O.M. No. 25013/01/2013-Estt. (A) dated 21.03.2014 Instructions exist on the need for periodical review of performance of Government servants with a view to ascertain whether the Government servant should be retained in service or retired from service in the public interest. Provisions in this regard are contained in FR 56 0), FR 56 (I) and Rule 48 (1) (b) of CCS(Pension) Rules, 1972. 2. As per these instructions the cases of Government servant covered by FR 56(j), 56(1) or Rule 48(1) (b) of CCS (Pension) Rules, 1972 should be reviewed six months before he / she attains the age of 50/55 years, in cases covered by FR 56(j) and on completion of 30 years of qualifying service under FR 56(1) / Rule 48 of CCS(Pension) Rules, 1972 as per the following time table:-
Sl. No. Quarter in which review is to be Cases of employees who will be attaining the made age of 50/55 years or will be completing 30 years of service or 30 years of service qualifying for pension, as the case may be, in the quarter.
1 January to March July to September of the same year 2 April to June October to December of the same year 3 July to September January to March of the next year 4 October to December April to June of the next year
3. The procedure as prescribed from time to time has been consolidated and enclosed as Appendix to this O.M. APPENDIX The appropriate authority has the absolute right to retire, if it is necessary to do so in public interest, a Government servant under FR 56(j), FR 56(1) or Rule 48 (1) (b) of CCS (Pension) Rules, 1972 as the case may be. The guidelines in this regard have been issued from time to time under the marginally noted office Memoranda which are available in this Ministry's website:www.persmin.nic.in The procedure has been summarized below:-Page 10 of 20
FR 56 Pension Rule 48(1)(b) of
CCS (Pension) Rules, 1972
Category FR 56 (j) All Government servants
Group 'A & B' officers: covered by CCS (Pension)
Rules, 1972 who have
who entered service before, 35 years of age completed 30 years of
and have attained 50 years of age. qualifying service
Other cases:.
Attained 55 years of age FR56(j)
A Govt. Servant in Group 'C' post who is not
governed by any Pension Rules, can also be
retired after he has completed 30 years
service.
Notice 3 months or 3 months pay allowances in lieu Three months or Three
Period thereof months pay and allowances
in lieu thereof.
2. The cases of Government servant covered by FR 56(j) , 56(1) or Rule 48(1) (b) of CCS (Pension) Rules, 1972 should be reviewed six months before he / she attains the age of 50/55 years, in cases covered by FR 56(j) and on completion of 30 years of qualifying service under FR 56(1) Rule 48 of CCS(Pension) Rules, 1972. Time Schedule for review is as under:-
Sl. No. Quarter in which review is to be Cases of employees who will be attaining the made age of 50/55 years or will be completing 30 years of service or 30 years of service qualifying for pension, as the case may be, in the quarter indicated below to be reviewed 1 January to March July to September of the same year 2 April to June October to December of the same year 3 July to September January to March of the next year 4 October to December April to June of the next year A register of employees who are due to attain the age of 50/55 years or complete 30 years of service to be maintained. The register should be scrutinized at the beginning of every quarter by a senior officer in the Ministry / Department and the review undertaken according to the above schedule.
3. It may be noted that Compulsory Retirement as a penalty under CCS (CCA) Rules, 1965 is distinct from the above provisions.
4. In order to ensure that the powers vested in the appropriate authority are exercised fairly and impartially and not arbitrarily, following procedures and guidelines have been prescribed for reviewing the cases of government employees covered under the aforesaid rules:
• The cases of Government servants covered by FR 56 (j) or FR 56 (I) or Rule 48(1)(b) of the CCS (Pension) Rules should be reviewed six months before they attain the age of 50/55 years or complete 30 years service / 30 years of qualifying service, whichever occurs earlier, • Committees shall be constituted in each Ministry / Department / Office, to which all such cases shall be referred for recommendation as to whether the Officer concerned should be retained in service or retired from service in the public interest.Page 11 of 20
5. The criteria to be followed by the Committee in making their recommendations would be as follows:-
(a) Government employees whose integrity is doubtful, will be retired.
(b) Government employees who are found to be ineffective will also be retired. The basic consideration in identifying such employee should be the fitness/competence of the employee to continue in the post which he/she is holding.
(c ) While the entire service record of an Officer should be considered at the time of review, no employee should ordinarily be retired on grounds of ineffectiveness if his service during the preceding 5 years or where he has been promoted to a higher post during that 5 year period, his service in the highest post, has been found satisfactory.
Consideration is ordinarily to be confined to the preceding 5 years or to the period in the higher post, in case of promotion within the period of 5 years, only when retirement is sought to be made on grounds of ineffectiveness. There is no such stipulation, however where the employee is to be retired on grounds of doubtful integrity.
(d ) No employee should ordinarily be retired on ground of ineffectiveness, if, in any event, he would be retiring on superannuation within a period of one year from the date of consideration of his case Ordinarily no employee should be retired on grounds of ineffectiveness if he is retiring on superannuation within a period of one year from the date of consideration of the case. It is clarified that in a case where there is a sudden and steep fall in the competence, efficiency or effectiveness of an officer, it would be open to review his case for premature retirement..
The above instruction is relevant only when an employee is proposed to be retired on the ground of ineffectiveness, but not on the ground of doubtful integrity. The damage to public interest could be marginal if an old employee, in the last year of service, is found ineffective; but the damage may be incalculable if he is found corrupt and demands or obtains illegal gratification during the said period for the tasks he is duty bound to perform.
6. The Supreme Court had not only upheld the validity of FR 56(j) but also held that no show-cause notice need be issued to any Government servant before a notice of retirement is issued to him under the aforesaid provisions. The appropriate authority defined in Note 1 below FR 56 should bonafide form an opinion that is in the public interest to retire the Government servant in exercise of the powers conferred by that provision and this decision should not be an arbitrary decision or should not be based on collateral grounds. Accordingly, in every case where it is proposed to retire a Government servant in exercise of the powers conferred by the said rule, the appropriate authority should record in the file its opinion that it is necessary to retire the Government servant in pursuance of the aforesaid rule in the public interest. The order to be served of the Government servant would of course be on the form prescribed for the purpose.
7. Detailed instructions on the procedure, criteria for assessment, issue of notice etc. are contained in the Office Memoranda indicated at page 1 of this Appendix and may be referred to.
Page 12 of 20O.M. No. 25013/01/2013-Estt. A-IV dated 11.09.2015 "2. Various instructions issued on the subject deal with compulsory retirement under the above mentioned provisions. The Supreme Court has observed in State of Gujarat Vs. Umed bhai M. Patel, 2001 (3) SCC 314 as follows:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) "For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer."
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even un-communicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid Departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure.
3. In every review, the entire service records should be considered. The expression 'service record' will take in all relevant records and hence the review should not be confined to the consideration of the ACR / APAR dossier. The personal file of the officer may contain valuable material. Similarly, the work and performance of the officer could also be assessed by looking into files dealt with by him or in any papers or reports prepared and submitted by him. It would be useful if the Ministry/Department puts together all the data available about the officers and prepares a comprehensive brief for consideration by the Review Committee. Even uncommunicated remarks in the ACRs/APARs may be taken into consideration.
4. In the case of those officers who have been promoted during the last five years, the previous entries in the ACRs may be taken into account if the officer was promoted on the basis of seniority cum fitness, and not on the basis of merit.
5. As far as integrity is considered, the following observations of the Hon'ble Supreme Court may, while upholding compulsory retirement in a case, may be kept in view:
The officer would live by reputation built around him. In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace to public service and injurious to public interest.
S. Ramachandra Raju vs. State of Orissa [(1994) 3 SCC 424] Page 13 of 20 Thus while considering integrity of an employee, actions or decisions taken by the employee which do not appear to be above board, complaints received against him, or suspicious property transactions, for which there may not be sufficient evidence to initiate departmental proceedings, may be taken into account. Judgement of the Apex Court in the case of Shri K. Kandaswamy, L.P.S. (TN:1966) in K. Kandaswamy vs Union Of India & Anr, 1996 AIR 277, 1995 SCC (6) 162 is relevant here. There were persistent reports of Shri Kandaswamy acquiring large assets and of his getting money from his subordinates. He also indulged in property transactions which gave rise to suspicion about his bonafides. The Hon'ble Supreme Court upheld his compulsory retirement under provisions of the relevant Rules.
6. Similarly, reports of conduct unbecoming of a Government servant may also form basis for compulsory retirement. As per the Hon'ble Supreme Court in State Of U.P.And Others vs Vijay Kumar Jain, Appeal (civil) 2083 of 2002:
If conduct of a government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the government has an absolute right to compulsorily retire such an employee in public interest.
7. Many changes in the nomenclature and in the areas of responsibility of various departments/Ministries have taken place. In order to simplify and speed up the procedure of review, a need is felt to reconstitute the Review Committees. In partial modification of the OM 25013/15/86-Estt (A) dated 27/06/1986, it has been decided that the Secretaries of the Cadre Controlling Authorities will constitute Review Committees consisting of two Members at appropriate level. The Review Committees in the case of various levels of employees will be as under:
(A) In case of officers holding Group A posts:
(a) In r/o ACC appointees:
Review Committee may be headed by the Secretary of the concerned Ministry/Department as Cadre Controlling Authority.
(b) In r/o Non-ACC appointees:
(i) Where there are Boards viz CBDT, CBEC, Railway Board, Postal Board, Telecom Commission, etc. the Review Committee may be headed by the Chairman of such Board.
(ii) Where no such Boards/Commissions exist, the Review Committee may be headed by Secretary of the. Ministry/Department.
(B) In case of Group B (Gazetted) officers:
Additional Secretary/Joint Secretary level officer will head the Review Committee.
(C) In the case of Non-Gazetted employees:
(i) An officer of the level of Joint Secretary will head the Committee. However in case the Appointing Authority is lower in rank than a Joint Secretary, then an officer of the level of Director/Deputy Secretary will be the head.
(ii) In the case of Non-Gazetted employees in other than centralized cadres, Head of Department/Head of the Organization shall decide the composition of the Review Committee.Page 14 of 20
8. CVO in the case of gazetted officers, or his representative in the case of non-gazetted officers, will be associated in case of record reflecting adversely on the integrity of any employee.
9. In addition to the above, the Secretary of the Ministry/Department is also empowered to constitute internal committees to assist the Review Committees in reviewing the cases. These Committees will ensure that the service record of the employees being reviewed, alongwith a summary bringing out all relevant information, is submitted to the Cadre Authorities at least three months before the due date of review.
10. The procedure as prescribed from time to time has been consolidated and enclosed as Appendix to the OM issued by this Department on 21/03/2014. As per these instructions the cases of Government servant covered by FR 56(j), FR 560), or Rule 48(1)
(b) of CCS (Pension) Rules, 1972 should be reviewed six months before he/she attains the age of 50/55 years, in cases covered by FR 56(j) and on completion of 30 years of qualifying service under FR 56(I)/Rule 48 of CCS (Pension) Rules, 1972 as per the following calendar:
Sl. No. Quarter in which review is to be Cases of employees who will be made attaining the age of 50/55 years or will be completing 30 years of service or 30 years of service qualifying for pension, as the case may be, in the quarter.
1 January to March July to September of the same year 2 April to June October to December of the same year 3 July to September January to March of the next year 4 October to December April to June of the next year In the case of Baikuntha Nath Das Vs. District Medical Officer, (1992) 2 SCC 299, Hon'ble Apex Court summed up the principles of compulsory retirement as follows:
"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 [pic]taking a decision in the Page 15 of 20 matter -- of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.
Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above."
In the case State of Gujarat Vs. Umedbhai M. Patel, (2001) 3 SCC 314, the Hon'ble Supreme Court summarized the law of compulsory retirement 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.
In Writ-A No. 24856 of 2020, Capt. Pramod Kumar Bajaj Vs Union of India, the Hon'ble High Court has came to the conclusion as under:
"44. In the case of Col. J. N. Sinha and others (supra), it has been held by the Hon'ble Supreme Court that FR 56(j) is a facet of the pleasure doctrine embodied in Article 310 of the Constitution of India. The pleasure, thus, of the government is to be inferred from the opinion formed by the competent authority on the point as to whether prematurely retiring an employee or to retain him is in public interest. Such an opinion, in our considered view, cannot be substituted by the opinion of the court. If on the basis of material available, the competent authority finds that it will be in public interest to compulsorily retire a government employee, such Page 16 of 20 decision need not be interfered with unless it is based on no material or is infested with mala fide.
45. In the facts of the case as can be culled out, we are of the opinion that it is not a case where the opinion of the competent authority to retire the petitioner compulsorily is based on no material and further that since the matter has been considered at the various stages, hence, it would be impermissible for the petitioner to plead at every stage that decision was infested with mala fide. The first stage where issue was considered was at the stage that the Review Committee which made the recommendation to compulsorily retire the petitioner. Nothing has been said in the writ petition or in the original application filed before the Central Administrative Tribunal against any of the members of the Review Committee so as to infer that these members had acted with malice.
46. The second stage of consideration was at the level of Central Government, when the recommendation of the Review Committee was accepted and the decision to compulsorily retire the petitioner was taken. The original application and even the writ petition lacks any allegation or any material against the officers at the highest level of the Government of India, Ministry of Finance, Department of Revenue.
47. The third stage when the matter was again considered was the Representation Committee, comprising of High Level Officers, which considered the representation preferred by the petitioner against the order of compulsory retirement and rejected the same. This Representation Committee also consisted of three officers and there is nothing on record; neither has it been pleaded that the members of the Representation Committee, which comprised of High Level Officers, acted with mala fide.
48. In view of the aforesaid discussion, the argument made by the learned counsel for the petitioner that the impugned action which resulted in compulsory retirement of the petitioner is infested with malice does not hold any force, hence, it is rejected.
49. So far as the submission made by the learned counsel for the petitioner based on sub clause (d) of clause 5 of the Office Memorandum dated 21.03.2014 is concerned, it is to be noticed that as per the said provision a government servant whose integrity is doubtful is to be retired compulsorily and the Government servant who is found ineffective is also to be retired. However, what is prohibited in sub clause (d) of clause 5 of the said Office Memorandum is that an officer who is to attain the age of superannuation within a year from the date of consideration of his case should "ordinarily" not to retired on the ground of ineffectiveness, though he can be retired in case of doubtful integrity. The said provision also provides that an employee who is retiring within one year from the date of consideration can be retired also in case of sudden and steep fall in his competence of efficiency. The provisions contained in sub clause (d) of clause 5 uses the word "ordinarily". It is thus, clear that sub clause (d) of clause 5 of the said Office Memorandum does not completely bar compulsory retirement of an employee on the ground of ineffectiveness if he is to attain the age of superannuation within one year from the date of consideration. The Office Memorandum dated 21.03.2014 is only an executive circular which has been issued for guiding the officers in the department concerned while they exercise the powers to compulsorily retire an employee. Such circular is only in aid of FR56 (j) which has statutory force. Thus, the provisions contained in Office Page 17 of 20 Memorandum dated 21.03.2014 are to be read in this context. FR 56(j) is quoted here for ready reference:
"FR 56(j) :- The Appropriate Authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice :-
(i) If he is, in Group 'A' or Group 'B' service or post in a substantive, quasi-permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years;
(ii) In any other case after he has attained the age of 55 years. "
50. On a bare perusal of the afore quoted provision contained in FR 56(j) what is noticeable is that primary consideration for the authority concerned to exercise such power is to ensure public interest. The relevant phrase occurring in the aforesaid provision is "the appropriate authority shall, if he is of the opinion that it is in the public interest to do so, have absolute right to retire any government servant". As observed above, operation of FR 56(j) is subject to the provision contained therein, according to which the Government employee can be compulsorily retired if he had attained the age of 50 years in case he holds class 1 or class 2 posts.
51. Thus, on attainment of age of 50 years, a class 1 or class 2 officer can be considered as to whether he needs to be retained in service or he should be prematurely retired in public interest. The right vested in the appropriate authority for such consideration is an absolute right and accordingly while judicially scrutinising an order of compulsory retirement, the courts should exercise it jurisdiction very sparingly. The situations in which judicial scrutiny can be undertaken by the Courts, have already been stated above. Thus, the Office Memorandum dated 21.03.2014, in our opinion, has to be read as subservient to FR56 (j) where importance is to be given to public interest and due weightage is to be given to "absolute right" vested in the appropriate authority. The Office Memorandum dated 21.03.2014 thus cannot be read as statute and in case consideration is made in respect of an employee who is to attain the age of superannuation within one year, he can still be compulsorily retired in public interest if the material available so warrants."
It is settled law that Principles of natural justice have no place while passing order of compulsory retirement. Only judicial scrutiny of the order of compulsory retirement can be done, order of compulsory retirement cannot be examined by the Court as an Appellate Court. Order of compulsory retirement can be interfered if Tribunal is satisfied that order is passed:-
(a) Mala fide or;
(b) That it 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.Page 18 of 20
Now, coming to the facts of the present case, the submission of the learned counsel for the applicant is that order of compulsory retirement is without evidence, has no substance because charge sheet was issued to the applicant on 15.07.2013 for major penalty under Rule 14 of CCS (CCA) Rules. There were several complaints against the applicant.
In counter reply at para 7, respondents have enumerated the evidence in detail viz :
(i) the applicant was charged with carrying out a shoddy investigation in Tax evasion petition relating to Sahara Group while functioning as DDIT (Inv. II) resulted in undue benefit to Sahara Group.
(ii) Allegation of lavish holidays abroad, possession of Benami properties in Noida/Delhi and illegal withdrawals from secret funds of Search Wing had been made in the complaint from Ms. Rajlakshmi Verma, MLA, UP.
(iii) Complaint was made for Tax Evasion Petition (TEP) unattended in the then office of the applicant with some ulterior motives. Inspection of these TEPs indicated serious irregularities.
(iv) The CVC, vide O.M. dated 28.07.2004 advised initiation of major penalty proceedings against the applicant in the above matter.
(v) The inquiry committee noted that the applicant failed to act on a complaint of bribery against his subordinate which resulted in a high pitched assessment order being passed and caused undue harassment to the taxpayer. Thus, applicant proved to be an ineffective supervisory officer and the complaint raises serious doubts about his integrity.
Although during the course of argument, learned counsel for the applicant eloquently refuted the allegations made in para 7 of the counter reply but the fact remains same that the charge sheet was issued to the applicant. However, Page 19 of 20 it came to be quashed by Tribunal. There were certain complaints against the applicant. Order of compulsory retirement is not passed on solitary instance; entire service record is considered. Keeping in view the facts stated in para 7 of the preliminary objection it can be safely concluded that the impugned order of compulsory retirement is not without evidence.
So far as submission of learned counsel for the applicant with regard to legal malice is concerned during the course of argument is transpires that action was taken against the 67 officers alongwith the applicant by the Union Government. So it cannot be the case of institutional bias. There are no procedural lapses. Matter was initially examined by the Review Committee considering the entire record of the applicant and made recommendation to retire him compulsorily. Thereafter, it was considered by the Union Government and recommendation of the Review Committee was accepted and decision to retire the applicant compulsorily was taken. Thereafter, matter was again considered by Representation Committee consisting of officers of the different department which upheld the order of compulsory retirement and rejected the representation. It cannot be assumed that Members of the Review Committee, Union Government or Representation Committee all were having malice against the applicant. So, in any case it cannot be a case of malice. Applicant has not taken case of individual malice of any officer of any department, so argument relating to malice also has no legs to stand in the present matter.
There is no evidence of arbitrariness as by following procedure, Review Committee reviewed the entire service record of the applicant and reached to the conclusion to retire the applicant compulsorily and recommended accordingly. Recommendation was accepted by the Union Government. Thereafter, representation of the applicant has already been rejected, so, it cannot be said that respondents acted arbitrarily or unfairly.
Learned counsel for the applicant further submitted that impugned order has not been passed in public interest. Applicant cannot become dead wood overnight prior to compulsory retirement he was given sensitive work. Applicant's matter was not taken up actually at the age of 50 or 55 years so procedure has not been followed. We do not agree with the aforesaid Page 20 of 20 submission of the learned counsel for the applicant as entire service career of the applicant has been considered by the Review Committee and in the public interest and to strengthen the administration Review Committee reached to the conclusion that services of the applicant are no longer required for the department and the Review Committee recommended the compulsory retirement of the applicant.
Learned counsel for the applicant challenged the competence of Review Committee and submitted that compulsory retirement of the ACC appointee cannot be recommended by the Review Committee.
We do not agree with the contention of the learned counsel for the applicant because Review Committee has been constituted as prescribed in DoPT's O.M. No. 25013/01/2013-Estt.A-IV dated 11.09.2015. Unless this O.M is set aside by the Court of competent jurisdiction, the functioning of Review Committee cannot be challenged.
Moreover, Review Committee be headed by Secretary of the concerned department as cadre controlling authority. In the present case, Review Committee consisted of the Secretary of Department of Revenue and Chairman, CBDT. So, the contention of the learned counsel for the applicant challenging the competence of the Review Committee recommending the compulsory retirement of the applicant, is also not sustainable in the eyes of law.
Considering the entire facts and circumstances, we are of the considered opinion that this O.A is devoid of merits and deserves to be dismissed.
Dismissed accordingly.
Miscellaneous application(s) pending, if any, also stand disposed of.
There is no order as to costs.
(Devendra Chaudhry) (Justice Anil Kumar Ojha)
Member (A) Member (J)
RK