Central Administrative Tribunal - Delhi
Sangeeta Rao vs M/O Personnel,Public Grievances And ... on 18 September, 2018
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.1827/2017
MA No.3526/2018
Reserved on: 11.09.2018
Pronounced on:18.09.2018
Hon'ble Mr. Justice L. Narasimha Reddy, Chairman
Hon'ble Ms. Aradhana Johri, Member (A)
Sangeeta Rao, Age 52 years,
Director, Central Secretariat Services (Group-A)
w/o Shri Hemant Rao,
R/o 219, Surya Niketan,
Vikas Marg Ex.II,
Delhi - 110 092.
(By Advocate: S/Shri Dinesh Kumar Garg, Dhananjay
Garg, Abhishek Garg and Deepak Mishra)
Versus
1. Govt. of India through
Secretary,
Ministry of Personnel, Public
Grievance and Pension,
Department of Personnel & Training,
North Block,
New Delhi.
2. Ministry of Defence through
Secretary,
Govt. of India, Sena Bhawan,
New Delhi.
3. The Competent Authority
(for Group-A, Class-I officers),
Ministry of Personnel, Public
Grievance and Pension,
Department of Personnel & Training,
Lok Nayak Bhawan,
New Delhi. ...Respondents
(By Advocate: Sh. Gyanendra Singh)
2
ORDER
By Hon'ble Ms. Aradhana Johri, Member (A):
The applicant Smt. Sangeeta Rao, Director, Central Secretariat Services, posted in the Ministry of Defence, was given premature retirement under FR 56(j), vide DOP&T OM No.21/19/2015-CS.I(P)(Part) dated 21.03.2016. Against the said order, the applicant made a representation dated 09.04.2016 to the respondents. When no action was taken by the respondents on her representation, she filed OA No.3065/2016. The OA was disposed of by the Tribunal, vide order dated 08.09.2016 directing the respondents to consider and decide the representation of the applicant in accordance with law, within a period of three months. Aggrieved by non-compliance of the Tribunal's order dated 08.09.2016, the applicant filed yet another OA No.282/2017 challenging the order of compulsory retirement, which was disposed of vide order dated 25.01.2017 reiterating the direction given in earlier OA No.3065/2016. In compliance of the Tribunal's order, the competent authority, vide order dated 14.03.2017 came to the conclusion that the premature retirement of the applicant under FR 56 (j) shall stand. Aggrieved by this order, the applicant has filed the instant OA. 3
2. It is the contention of the applicant that she has an outstanding career and was given Senior Selection Grade (Director) on ad hoc basis, vide order dated 28.05.2014. While admitting that she has been absent for a long period and has come late to office and left early on several occasions, as recorded in the Biometric Attendance System [hereinafter referred to as 'BAS'], she has stated that this could not be a ground for premature retirement. She goes on to say that the Representation Committee recommended that she be reinstated in service, but the competent authority rejected the recommendation of the Representation Committee. The applicant also alleged that no action has been taken against those who have not yet registered themselves in BAS. She also claimed that she has not been afforded any opportunity of hearing. Regarding absence from duty and coming late/leaving officer early, the applicant claims that casual leave/earned leave could have been deducted instead of resorting to premature retirement. The applicant has also informed that she has made representation to the National Commission for Scheduled Caste on which the Commission desired the names of four officers whose records are not available in the BAS in the Ministry of Defence and wanted to know what action the government proposed in respect of such 4 officers and reasons of segregating some officers like the applicant, which they observed on 26.04.2018. The next date of hearing was fixed to be 06.06.2018. No other papers have been filed by the applicant in any other matters of the Commission of Scheduled Caste.
3. The reliefs sought are:-
"(a) Call for the record;
(b) Issue an appropriate direction or order quashing the Order No.21/19/2015-CSI(P)(Part) dated 21.3.2016 (Annexure A-1), whereby the applicant has been prematurely retired;
(c) Issue an appropriate direction or order quashing the Order No.21/19/2015-CS.I dated 14.03.2017 (Annexure A-2) whereby the Competent Authority DOPT, by after rejecting the recommendation made by the Representation Committee maintained the earlier order dated 21.3.2016 of pre-matured retirement of the applicant;
(d) Issue an appropriate direction or order quashing the Letter/Communication No.A-38012/1/215-D dated 15.10.2015 of Ministry of Defence, whereby it was informed to the Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training, that the performance of the applicant was just average and she needed to improve punctuality;
(e) Issue an appropriate direction or order directing the Respondents to re-instate the applicant with full back wages and other consequential benefits with seniority;
(f) Pass any other order or orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
4. The respondents have contested the claim of the applicant and stated that FR 56 (j) provides that if the appropriate authority is of the opinion that it is in public interest to prematurely retire any government servant, they have absolute right to do so by giving him notice of not less 5 than three months in writing or three months' pay and allowances in lieu of such notice, which has been done in this case. Further, as per rules, if a government servant has joined the service before attaining the age of 35, he can be prematurely retired after attaining the age of 50 years.
5. The respondents further submitted that there is no record of 52 days in BAS for the period 16.12.2014 to 22.02.2016 (excluding her training period from 22.07.2015 to 25.08.2015) when she remained in the Ministry of Defence. Even after deducting 12 more days, based on the records of Ministry of Defence when she had either gone for some training/tour or had signed some office record; there is no record to prove that she attended office for 40 days. In addition to this absence of 40 days, out of the total 218 days when she registered her attendance in BAS, 119 days she arrived late between 11.00 am to 1.00 pm; on 99 days, she attended office after 1.00pm; and on 39 days she left office even before 5.00 pm. On one occasion, she came to office at 13:56:57 and returned back at 13:59:23. The respondents further state that only nine times out of the total period under reference, she did stay for more than 6 hours in office. Accordingly, her average working hours per day range between 3-5 hours. The respondents vehemently contended that keeping in mind the fact that so many 6 productive working hours were lost at the level of Director, which is a sufficiently senior position, where the applicant is expected to lead by an example and if an officer of the grade of Director acts so irresponsibly so as to have a poor attendance record, it can certainly have a huge adverse impact on the staff leading to below par performance by the entire team. Further, the respondents stated that the applicant did not avail any leave during this period for which BAS record has been furnished. The respondents averred that Ministry of Defence, vide their ID dated 29.02.2016 (Annexure R-V) also sought explanation of the applicant. The respondents further submitted that the Review Committee, after going through the defence of the applicant wherein she had had given the circumstances i.e. old bedridden mother, living at distant place from office (Ghaziabad), posting of spouse at Lucknow, etc. as reasons for almost daily late coming to office and leaving early, observed that the reasons given by the applicant are personal and not unique as many officers in the age group of the applicant face somewhat similar situations, but that does not entitle them for absenting themselves in duty hours. Therefore, as per the respondents, the Review Committee observed that if such behaviour is allowed, it may have a huge disruptive influence on the working of the 7 Organization. The respondents further stated that the Review Committee, after taking into account the fact that the applicant was promoted in April, 2014 to the grade of Director and it was felt that the officer after promotion would feel motivated to contribute to the government work and behave in more responsible manner befitting her level in the Government, observed that behaviour of the applicant belied such hopes and no useful purpose would be served by keeping her on the rolls of the Government.
6. Heard Shri Dinesh Kumar Garg, who was assisted by Sh. Dhananjay Garg, Sh. Abhishek Garg and Sh. Deepak Mishra, learned counsel for the applicant and Sh. Gyanendra Singh, learned counsel for the respondents.
7. DOP&T OM No. 25013/01/2013-Estt.A-IV dated 11.09.2015, which quotes rulings of Hon'ble Supreme Court, had issued various instructions in relation with FR 56(j) and Rule 48 of CCS (Pension) Rules, 1972 on the subject of compulsory/premature retirement. Hon'ble Supreme Court has observed that in the case of State of Gujarat vs. Umedbhai M. Patel [2001 (3) SCC 314] regarding the law relating to compulsory retirement has now crystallized into definite principles, which are extracted as under:-
"(i) Whenever the services of a public servant are no longer useful to the general administration, the officer 8 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."
The OM dated 11.09.2015 further specifies that 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 only. It further goes on to state as under:-
"6. Similarly, reports of conduct unbecoming 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."9
8. From perusal of records and on the basis of the arguments of the learned counsels from both sides, it is clear that the applicant has absented herself for long periods (40 days) without any approval or even without applying for leave. Further, out of the total 218 days when she registered her attendance in BAS, on 119 days she arrived late between 11.00 am to 1.00 pm; on 99 days, she attended office after 1.00pm; on 39 days, she left office even before 5.00pm. On one occasion, she came to office at 13:56:57 and returned back at 13:59:23 and only on nine occasions, out of the total period under reference, did she stay for more than 6 hours in office. Her average working hours per day range between 3-5 hours only. Therefore, applicant's considerable absence from office and very limited hours put in by her will not only affect the discharge of her duties, but also create a very bad example for the subordinates. In the light of this, it can be inferred that the utility of applicant's services is very limited to the organization.
9. There have been several rulings on the subject of compulsory retirement, but the decision, most relevant to adjudicate the controversy involved in this case, appears to be Union of India vs. Col. J.N. Sinha & Anr. [1971 AIR 40], wherein the Hon'ble Supreme Court has dealt with the 10 whole issue of rights of employer and employee regarding compulsory retirement including that compulsory retirement shall not be imposed on a government servant as a punitive measure. The Hon'ble Court has observed that compulsory retirement does not involve any civil consequence. A person retired under Rule 56 (i) does not lose any of the rights acquired by him before retirement. The rule is not intended to take any penal action against government servant. It merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution. The relevant portion of is extracted as under:-
"Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Kralpak's case these rules can operate only in areas not covered by any law validly made. If a statutory provision can be read consistently with the principles of natural justice, the Courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But on the other hand a statutory provision either specifically 'or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read with the concerned provision the principles of natural justice. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of the power.
Fundamental Rule 56(i) does not in terms require that any opportunity should be given to the concerned Government servant to show cause against his compulsory requirement. It says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. If that authority 11 bona fide forms that opinion the correctness of that opinion cannot be challenged before courts, though it is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The respondent had not challenged the impugned order on any of these grounds.
Compulsory retirement does not involve any civil consequence. A person retired under Rule 56(i) does not lose any of the rights acquired by him before retirement. The rule is not intended for taking any penal action against government servants. It merely embodies one of the facets of the pleasure doctrine embodied in Art. 310 of the Constitution. The rule holds the balance between the, rights of the individual government servant and the interests of the public. While a minimum service is guaranteed to the government servant, the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest. Three months notice is provided to enable the retired employee to find out other suitable employment.
On the above view of the law, namely, that no notice to show-cause was required, the appeal must be allowed."
This decision makes it clear that there is no requirement of an opportunity being given to the concerned government servant to show cause against compulsory retirement, and the appropriate authority has the absolute right to retire a government servant prematurely, if it is of the opinion to do so in public interest. Thus, the claim of the applicant that she was not given any notice cannot be a ground for striking down the order of premature retirement.
10. A plea has been taken by the applicant that her entire service record should have been taken into account before 12 resorting to premature retirement. In this regard, the Hon'ble Supreme Court in the case of Baikuntha Nath Das and Another vs. Chief District Medical Officer, Baripada and Another [1992 (2) SCC 299] observed 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 perverse order.
(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it un-communicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference."
13In the aforesaid decision, Hon'ble Supreme Court also mentioned that more importance should be attached to the record of and performance during the later years. As clarified in the OM dated 11.09.2015, service record is not confined to consideration of ACR/APAR and comprises of relevant records. This would also include attendance in office, especially when such a grave issue of prolonged absence from office and repeated unpunctuality is observed. As per letter no.A-38012/1/2015-D(est.I/GpI) dated 15.10.2015 (Annexure R-III), Ministry of Defence has conveyed to DOP&T that the applicant's performance was just average and she needed to improve punctuality. The applicant has stated that she never got a copy of this letter. However, it is needless to say that a senior officer of the level of Director in Government of India, who has completed more than 20 years of service, does not need to be reminded again and again to be punctual and not absent herself from the office without any permission.
11. Further, in the case of Union of India vs. M.E. Reddy [1980 AIR 563], while examining Rule 16(3) of the All India Services (Death-cum-Retirement) Rules, 1958 on the same issue of compulsory retirement, the Hon'ble Supreme Court has observed as under:-
"3. The object of Rule 16(3) is to weed out the dead 14 wood in order to maintain a high standard of efficiency and initiative in the State service. 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 A not cast any aspersion, nor does it entail any civil consequences. Of course, it may be said that if such officers were allowed to continue they would have drawn their salary until the usual date of retirement. But, this is not an absolute right which can be claimed by an officer who has put in 30 years of service or attained the age of 50 years. Rule 16(3) does nothing of the sort of attaching stigma."
From the above, it emerges that the entire record of a public servant is not limited to only ACR/APAR, and more weightage needs be given to the recent past since the bahaviour of an officer can change over time.
12. The case of Umedbhai M. Patel (supra) has been cited by the applicant to make the point that if absence from duty was to be treated as misconduct then it would entail disciplinary proceedings and not premature retirement. However, the facts of the case cited by the applicant are different wherein enquiry was initiated but not completed and compulsory retirement was resorted to, and that too, when the respondent had less than two years to retire from service. In that particular matter, the 15 authorities did not even wait for 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, the order of compulsory retirement was passed for extraneous reasons. Relevant portion of the judgment is extracted as under:-
"...The State Government had sufficient time to complete the enquiry against him but the enquiry was not completed within a reasonable time. Even the Review Committee did not recommend the compulsory retirement of the respondent. The respondent had only less than two years to retire from service. Therefore, it could be said that the order of compulsory retirement was passed for extraneous reasons. 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, the High Court was right in holding that the impugned order was liable to be set aside."
However, in the instant OA, these conditions do not apply since no disciplinary proceedings have been said to be initiated against the applicant. On the contrary, there is adequate proof of abnormal absence from duty which has seriously affected the utility and productivity of the concerned public servant. The Review Committee also found it a fit case for premature retirement.
13. The applicant also produced an Extract before the Court at the time of hearing, which has been taken on record at page 236, wherein the Committee again examined the cases of three officers for premature retirement on 16 14.03.2016, including the applicant. A decision was taken to recommend the name of the applicant for premature retirement under FR 56(j), while it was recorded that the cases of Smt. Anita Patheja and Joseph Luikhem were not considered as they had applied for voluntary retirement. Therefore, it appears that the matters of other officers were also processed along with the applicant.
14. In the facts and circumstances of the case, and in view of the discussion undertaken above, we are of the considered view that the OA is devoid of merits, and the same is accordingly dismissed. MA No.3526/2018 also stands disposed of.
15. There shall be no order as to costs.
(Aradhana Johri) (Justice L.Narsimha Reddy) Member (A) Chairman /AhujA/