Central Administrative Tribunal - Delhi
Shri Ram Hit vs Union Of India on 20 January, 2012
Central Administrative Tribunal Principal Bench O.A.No.887/2011 New Delhi, this the 20th day of January, 2012 Honble Mr. Justice S.D.Anand, Member (J) Honble Shri Shailendra Pandey, Member (A) Shri Ram Hit s/o Late Shri Sukhari Ram Retd. Driver Grade-I of Mail Motor Service New Delhi 110 028. r/o B Block, Vikas Kunj Laxmi Garden Loni Ghaziabad Address for service of notices C/o Sh. Sant Lal, Advocate, CAT Bar Room, New Delhi 110 001. Applicant (By Advocate: Sh. Pradeep Kumar proxy of Sh. Sant Lal) Versus Union of India, through The Secretary M.O.C. & I.T, Department of Posts Dak Bhawan New Delhi 110 001. The Director Postal Services (MB) O/o the Chief Postmaster General Delhi Circle, Meghdoot Bhawan New Delhi 110 001. The Sr. Manager, Mail Motor Service Naraina New Delhi 110 028. Respondents (By Advocate: Shri T.C.Gupta) O R D E R By Shailendra Pandey, Member (A):
In this OA, the applicant, who was compulsorily retired as a Driver, Grade-I in the Mail Motor Service, New Delhi, has challenged the following orders:
Order/notice dated 6.11.2009, for compulsorily retirement under FR 56(j) on attaining the age of 55 years, issued by the Director Postal Services (MB), Delhi Circle, New Delhi.
Order dated 07.04.2010, rejecting the representation of the applicant dated 18.01.2010.
2. The brief facts of the case, as gathered from the pleadings, are that the cases of Grade `C and `D officials of Delhi Circle (including Mail Motor Service, New Delhi), including that of the applicant, who would be completing 55 years of age/30 years of service during the Quarter 01.01.2010 to 31.03.2010 were reviewed, for their retention in service/otherwise under the provisions of FR 56(j) and Rule 48 of CCS (Pension) Rules, 1972, by the Circle Review Committee of the respondents on 30.09.2009. The applicant was not recommended for further retention in service. Accordingly, Director Postal Services (MB) issued the order dated 06.11.2009. Against this order, the applicant submitted a representation dated 18.01.2010 to the Member (O), Dak Bhawan, New Delhi, which was rejected vide order dated 07.04.2010. The present OA has been filed seeking the following reliefs:
to quash and set aside the impugned order/notice dated 6.11.09 and order dated 07.04.2010.
to direct the respondents to reinstate the applicant in service forthwith and to grant all consequential benefits including the backwages as if the impugned orders had not been issued.
3. The main grounds on which the aforesaid reliefs are claimed are that the impugned notice and orders are arbitrary, illegal and discriminatory and violative of Articles 14 and 16 of the Constitution of India and the principles of natural justice. In this connection, it is submitted that the impugned order/notice dated 6.11.2009 of premature retirement has been issued by the Director Postal Services and not by the competent appointing authority (the Senior Manager) and as such is viod ab-initio.
that the Representation Committee of the Postal Directorate which met on 25.02.2010 allowed the representation of the applicant and quashed the decision of the Circle to issue the order/notice under FR 56(j) as the applicant had been graded good and satisfactory on all relevant counts and the last of six punishments were awarded to him in 1999 and he had not come up for any adverse notice since then, but the reconsideration of the Representative Committee has been arbitrarily controverted by the impugned order.
that the applicant had earned several promotions (as MV Driver in 1982, as Driver Grade II w.e.f. 01.08.1993 and Driver Grade III w.e.f. 12.11.1998) and, therefore, the punishments imposed prior to the grant of the promotions lose their significance and cannot be taken into account while considering his case of premature retirement, but have wrongly been taken into account.
that the respondents have not followed the relevant guidelines/instructions prescribed for Compulsory Retirement cases in the CCS Rules, and that the Secretary has not applied his judicial mind to the facts and circumstances of his case and to the grounds given in his representation and in the findings/recommendations of the Representation Committee, and that the decision to compulsorily retire him is arbitrary.
4. The respondents in their reply have opposed the OA and have stated that the Circle Review Committee met on 30.09.2009 to consider the cases covered under FR-56(J) and Rule 48 of CCS (Pension) Rules, 1972 in respect of all the Units of Delhi Circle including Mail Motor Service, New Delhi. The case of the applicant was reviewed under FR 56 (J) on the basis of his entire service record which revealed that the official has been chargesheeted 6 times in his career on various departmental misconducts which inter alia included negligence in performing of duties, intoxication while on duty and putting false remarks in the log sheet etc. Further, the applicant was in the habit of frequently absenting himself from duty without prior permission of the Competent Authority and as a consequence, a period of 378 days was ordered to be treated as `Dies non. On a review of this factual position, the Review Committee recommended that the official should not be retained in service as per the provisions of FR 56 (J). Accordingly, Director Postal Services (MB), being the appointing authority, issued notice of premature retirement vide order dated 06.11.2009. The applicant submitted his representation dated 18.01.2009 against the order dated 6.11.2009, and the same was considered by the Representation Committee, which upheld the decision of the Reviewing Committee and rejected the representation of the applicant. It is stated that the decision was taken after following due procedure prescribed with regard to cases of retirement under FR 56 (j) and no interference by the Tribunal is warranted. In support, the respondents have relied on a decision of a Coordinate Bench of this Tribunal in OA No.4129/2010 (Sh. Bhagwan Singh v. Union of India & Others, decided on 06.09.2011) and have stated that the present case is covered by the aforesaid decision.
5. We have heard the counsel for both the parties and have been through the pleadings on record, including the written arguments dated 12.12.2011, filed by the respondents on 14.12.2011.
6.1. FR 56(j) is extracted below:
(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. Thus, under FR 56(j) above, the competent authority is empowered to pass an order of retirement after an employee attains/completes the prescribed number of years of service/attaining a particular age, on formation of an opinion that in public interest it is necessary to compulsorily retire the Government servant. No Government servant has a right, much less any fundamental right, to continue in service beyond the age at which he can be retired under FR 56(j), if the employer does not consider his retention in service to be in public interest.
6.2. It will also be useful to refer to the following instructions issued by the DoPT (vide its OMs dated 7.08.1985 and 07.03.1986) - regarding premature retirement of Central Government servants, as brought out in Swamys Establishment and Administration 2003:
V. Guidelines for Review Committee for reviewing CR dossier:
Entries in the CR dossier of an officer will of course form a very important part of the total service record taken into consideration while reviewing any proposal for premature retirement. There are, however, certain misconceptions relating to the procedure to be adopted in this behalf and clarifications are given below based on judicial pronouncements.
The general impression prevalent that the Review Committee shall not take into account any remark that has not been communicated to the officer, is not a self-restrain that should invariably hold good in all circumstances. Non-communication of an adverse entry in regard to doubtful integrity may not be fatal in certain circumstances.
In a particular case, while an odd adverse remark that may not have been communicated to the officer concerned, could be taken into account as part of the total service record considered by the Review Committee, it would not, as a matter of course, be appropriate to take into account adverse remarks which have not been communicated to the officer.
The Supreme Court has also not accepted the contention that a remark of a genuine nature, without basing it on a specific instance, does not give an adequate opportunity for representation against it and should not, therefore, be taken into account.
Another point to be kept in view is that, when an overall assessment is made of the record of a Government servant, more than ordinary value should be attached to the confidential remarks pertaining to the years immediately preceding the review. It is possible that a Government servant having a somewhat erratic record in the early years of service may have so greatly improved with the passage of time that it would be appropriate to continue him in service up to the prescribed age of superannuation. Whatever value the confidential remarks of earlier years may possess, those pertaining to the later years immediately preceding the review are of direct relevance and hence of utmost importance.
[G.I., Dept. of Per. & Trg., O.M. No.25013/30/85-Estt.(A), dated the 7th August, 1985 and No.25013/38/85-Estt.(A), dated the 7th March, 1986.] (Emphasis supplied) VI. Service Record for consideration:
The term `service record is all embracive and review should not hence be confined to the consideration of only the annual confidential remarks recorded on the officer. In the case of a number of Ministries/Departments, officers take action for concluding contracts, settling claims, assessing taxes or duties payable, etc. Doubts may have arisen relating to the bona fide nature of action taken by the officer, but on account of inadequate proof, it may not have been possible to initiate action for a regular departmental inquiry, leading finally to a punishment of the nature that find entry in the CR dossier of the officer. But the personal file of the officer may have details of the nature of doubt that arose regarding the integrity of the officer and the result of the preliminary investigation that was carried out. Matters found on the personal file of the officer can and should also, therefore, be placed before the Review Committee and not only the CR dossier of the officer.
It is likely that each allegation that comes to notice against the integrity of the officer may have been handled on a separate file and that details thereof may not be available on the personal file of the officer, which is confined only to establishment matters, like increments, promotions, leave, PF advance, etc. In such a situation, well ahead of the meeting of the Review Committee, the Ministry/Department will have to compile together all the data available in the separate files and prepare a comprehensive brief for the consideration of the Review Committee.
There are a number of judicial pronouncements in support of the above instruction that a total assessment of the performance of the Government can be made. There have also been observations that have approved any measure by which the assessment by superiors, with an opportunity to watch the work and conduct of an officers is taken into account while deciding premature retirement.
There may be cases where it becomes necessary to review the record of an officer after he has been allowed to cross the efficiency bar or after he was promoted to a selection or non-selection post. In the light of the Supreme Courts observations, the position that emerges is that, the period immediately preceding the review (which may be taken as five years) or the period after promotion or crossing efficiency bar would be of utmost importance. However, if during the aforesaid period of review, there is evidence of deterioration of efficiency or unsatisfactory performance, then it would be in order for the Review Committee to examine the entire service record to arrive at a total picture about the suitability or otherwise of the officer for further retention in service.
[G.I., Dept. of Per. & Trg., O.M. No.25013/30/85-Estt.(A), dated the 7th August, 1985 and No.25013/38/85-Estt.(A), dated the 7th March, 1986.] 6.3. Appendix 9 of CCS (Pension) Rules, 1972 further provides as under:
Perusal of entire service record:
2. Para. II (3) ) of the Office Memorandum, dated the 5th January, 1978, lays down that the entire service record of an officer should be considered at the time of review. Consideration has 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 where 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. (Emphasis supplied) 6.4. It would also be useful at this juncture to recall some legal pronouncements of the Honble Apex Court made in connection with cases relating to compulsory retirement under FR 56(j):
In Baikuntha Nath Das and Another v. Chief District Medical Officer, Baripada & Another, (1992) 2 SCC 299 it was held as under:
a. compulsory retirement in the public interest carries no stigma under Rule 16(3) of the All India Services (Death-cum-Retirement) Rules, 1958 and the officer retains full pensionary benefits.
b. Loss of efficiency at the age prescribed is a ground of public interest. It is not a punishment. Hence article 311(2) is not attracted.
c. Even if adverse entries are not communicated, the order is valid if there are no mala fides.
Further, it has been held that compulsory retirement under Article 465A, Note 1 of the Civil Service Regulations would not attract Article 311(2) even if, in fact, the order is passed on grounds of misconduct, inefficiency or the like. The Government servant does not, in such a case, lose terminal benefits, and no penal consequences are involved. Such an order does not amount to dismissal or removal.
The Honble Apex Court has also held in Posts and Telegraphs Board and Others v. C.S.N.Murthy, (1992) 2 SCC 317, Paragraph 5, that even an adverse report for a single year may constitute sufficient material for the Government to come to a decision that the employees standard of work was not satisfactory, and that he should, therefore, be retired. The reason is that the nature of the delinquency, and whether it is of such a nature as to require compulsory retirement, is for the departmental authorities to decide. The court will not interfere with the exercise of that power except on the ground of mala fide, etc. In State of Rajasthan v. Shiv Lahari Sharma, AIR 1992 SC 1587 (Paragraphs 8 and 9), a 3 Judges Bench held that where an order of compulsory retirement has become final by an appellate order but the petitioner prays for reconsideration of that order, what is to be determined by the authority (or Tribunal) on such prayer, is not whether the order of compulsory retirement was vitiated on merits (as is done while hearing an appeal), but whether the conditions for reconsideration, according to the relevant Rules or circulars, were fulfilled.
7. The position that emerges from the above is the following:
I. Under Fundamental Rule 56 (j) the appropriate authority has the absolute right to retire a Government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, the most important one being that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before Courts.
II. The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision to retire a person under FR 56 (j).
III. An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. Compulsory retirement is bound to have some adverse effect on the Government servant who is compulsorily retired, but then as the rule provides, such retirements can be made only after the officer attains the prescribed age. Further a compulsorily retired Government servant does not lose any of the benefits earned by him till the date of his retirement. Three months' notice is provided so as to enable him to find out other suitable employment.
(IV) 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 Tribunal/Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed mala fide or is totally arbitrary or perverse.
V. The decision taken, i.e., the opinion formed to retire the person must be based on the material on record; otherwise it would amount to arbitrary or colourable exercise of power.
8. We proceed to examine the case of the applicant in this OA in the aforementioned background.
8.1. While being conscious of the fact that the State has a virtually absolute right to retire a Government servant, if it is of the opinion that it is in the public interest to do so, we must also observe that it is incumbent before resorting to an order under FR 56(j) that the authority concerned forms a bonafide opinion that it is not in the public interest to retain the Government servant concerned. That is why the procedures prescribed require that the cases taken up for possible retirement under FR 56 (j) should first be looked into by a Review Committee with a provision for a representation which is to be examined by the Representation Committee, after which the competent authority takes a final decision based on the various considerations that may weigh with him while exercising his power in the matter. In some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding it. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. What is, however, of supreme importance is that the final decision taken is on a bonafide opinion formed, based on the material on record, and adequate consideration of the issues that may be raised. Thus, it is necessary to show and demonstrate that there has been proper application of mind to the issues raised in connection with the proposed compulsory retirement of an officer, which, though not being a punishment and not attaching any stigma to the officer; deprives him of further service which in the normal course he would have had.
8.2. We find that in the case of the applicant, the respondents in their reply have stated that the Representation Committee upheld the decision of the Reviewing Committee and rejected the representation of the applicant. However, it is noticed that the said averment is not correct as the Representation Committee clearly concluded as under:
6.The last of the six punishments was awarded to the official in the year 1999 and since then for almost 11-12 years he has not come up for any adverse notice vis-`-vis his ACR or chargesheet. Keeping in view the above factual position, the representation of the official is allowed and the decision of the Circle to issue a notice under FR 56(j) is ordered to be quashed. It is also noticed that when the recommendations of the Representation Committee were placed before the Secretary, Department of Posts for orders, the Secretary observed, in his note dated 08.03.2010, as under:
As per 7/C he has put false remarks regarding touching PO on his sechedule, broke down the vehicle due to not checking Oil guage, was under influence of liquor during duty hours and therefore a danger to the public, Absented himself him duty of delivering mail to POs each action impacts on Departments image, operation and cost. Committee may review its decision. The file was re-submitted to the Secretary by the Member (P), stating as under:
It is humbly submitted that as per the instructions on premature retirement, there is no provision to refer the case back to the Representation Committee for review. The orders of the Secretary (Posts) will take the final shape.
In view of the above, the case may be re-submitted for orders of the Secretary (Posts) whether the recommendations of the Representation Committee are accepted or not. On the above note, the Secretary (Posts) simply made the following remarks in his note dated 26.03.2010:
I do not accept the recommendation of the Committee. The official may be told that his representation has been rejected. and accordingly, the final order dated 07.04.2010 was issued stating that the competent authority has rejected the representation of the official. It is noticed that no period and dates or details have been mentioned by the Secretary (P) regarding the incidents (adverse to the applicant) referred to in his noting dated 07.04.2010. There is also no mention of the reasons for rejecting the findings/recommendations of the Representation Committee.
9.1. When the representation committee placed their recommendations before the competent authority for orders, it was obligatory on the part of the competent authority (the Secretary) to have given due consideration to these recommendations and only after recording reasons for his non-acceptance of the same to have passed the final orders. The orders should also have given reasons for rejecting the contentions raised in the representation of the applicant. If such reasons are not recorded/given, then the right to appeal or to make a representation becomes an empty formality. Further, a satisfactory decision of a disputed contention can be reached only if it is supported by cogent reasons that appeal to the authority concerned. Recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just.
9.2. In the present case, although the competent authority (Secretary) had initially taken a decision to ask the Representation Committee to review the matter, when the matter was resubmitted to him stating that there is no rule to review the decision of the Representation Committee, the competent authority simply rejected the claim of the applicant and passed the non-speaking order dated 07.04.2010. Further, as already noted, while referring the matter back to the Representative Committee vide his note dated 08.03.2010, no details or period and dates of the incidents (adverse to the applicant) referred to by the Secretary (P) were mentioned, and nor have these been mentioned in his final order dated 26.03.2010. This was necessary in the context of the DoPT guidelines referred to in V of Para 6.2 above that Whatever value the confidential remarks of earlier years may possess, those pertaining to the later years immediately preceding the review are of direct relevance and hence of utmost importance. From a perusal of the order passed by the Secretary (P), we are unable to arrive at a conclusion that the issues raised by the Representation Committee had been given due consideration by him, and only then over ruled. A perusal of his order suggest that he has not done so. We hold that it was necessary for the Secretary to give full consideration to the issues raised by the Representation Committee and record reasons before taking his final decision overruling their recommendations.
10. The decision of this Tribunal passed in OA No.4129/2010, referred to by the respondents, is distinguishable as in that case all the Committees including the Representation Committee rejected the case of the applicant whereas in the present case, the Representation Committee supported the case of the applicant.
11. In view of the above, we are of the considered view that interest of justice would be met if, in the first instance, the case is remanded back to the Secretary, Department of Posts, to reconsider the case of the applicant in accordance with rules [i.e., DoPTs OMs dated 5.01.1978, O.M. No.25013/30/85-Estt.(A), dated the 7th August, 1985 and No.25013/38/85 - Estt. (A), dated the 7th March, 1986] giving adequate consideration to the observations of the Representation Committee and why he feels they are not acceptable and then to take a final decision in the matter through issue of a reasoned and speaking order. The order so issued should be communicated to the applicant within a period of two months from the date of receipt of a copy of this order. Ordered accordingly. No costs.
(Shailendra Pandey) (Justice S.D.Anand) Member (A) Member (J) /nsnrsp/