Central Administrative Tribunal - Cuttack
Gupta Chandra Bidika vs Bharat Sanchar Nigam Limited on 3 December, 2024
1 O.A.No. 260/00336 of 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH, CUTTACK
O.A.No. 260/00336 of 2023
Reserved on 27.11.2024 Pronounced on 03.12.2024
CORAM:
THE HON'BLE SHRI SUDHI RANJAN MISHRA, MEMBER (J)
THE HON'BLE SHRI PRAMOD KUMAR DAS, MEMBER (A)
Gupta Chandra Bidika, aged about 56 years, Son of Late
Raghunath Bidika, Ex-General Manager, BSNL Odisha
Circle, Resident of 141-Dharma Vihar, Khandagiri,
Bhubaneswar-751030, Dist.- Khurda.
......Applicant
VERSUS
1. Union of India represented through its Secretary,
Ministry of Communications, Department of Tele
Communication, New Delhi-110001.
2. Chairman-cum-Managing Director, Bharat Sanchar
Nigam Limited, Corporate Office, New Delhi-110001.
3. Member (Services), Dept. of Telecom, Ashoka Road,
Sanchar Bhawan, New Delhi-110001.
4. Under Secretary, Govt. Of India, Ministry of
Communications, Department of Tele Communication,
New Delhi-110001.
5. Chief Vigilance Officer, Department of Telecom, Ashoka
Road, Sanchar Bhawan, New Delhi-110001.
6. Chief General Manager, Bharat Sanchar Nigam Limited,
BSNL Bhawan, Ashoka Nagar, Unit-II, Odisha Telecom
Circle, Bhubaneswar-751009, Dist-Khurda, Odisha.
2 O.A.No. 260/00336 of 2023
7. Ministry of Personnel Public Grievances and Pensions
Department of Personnel and Training, Establishment
A-IV Desk, North Block, New Delhi-110001.
......Respondents
For the applicant : Mr. N.R.Routray, Counsel
For the respondents: Mr. D.K.Sahoo, Counsel
Mr. K.C.Kanungo, Counsel
O R D E R
PRAMOD KUMAR DAS, MEMBER (A):
The Applicant was working as General Manager, BSNL, Odisha Circle and, while working as such, the Competent Authority, in exercise of power conferred under provisos of Rule 56 (J) of the Fundamental Rules (FR) read with Rule 42 of the CCS (Pension) Rules, 2021 ordered to retire him from service prematurely, in public interest, vide order No. 26-4/3033/STG-I/9 dated 26.12.2022 (A/4). Being aggrieved by the aforesaid order, he preferred memorial/representation dated 06.01.2023 which was considered and rejected and the rejection was communicated to him vide letter No. 16-4/2022/STG-I(d) dated 13.04.2023 (A/9); which orders have been challenged by the Applicant in this Original Application filed u/s.19 of the Administrative Tribunals Act, 1985 with prayer as under:
3 O.A.No. 260/00336 of 2023
"(i) To quash the order dated 26.12.2022 and
13.04.2023 under Annx.A/4&A/9
respectively;
(ii) And to direct the Respondents to reinstate the
applicant in service w.e.f. 27.12.2022;
(iii) And to direct the Respondents to grant all consequential and financial benefits in view of reinstatement in service;
And pass any other order as this Hon'ble Tribunal deems fit and proper in the interest of justice."
2. The Respondents filed their counters contesting/opposing the stand taken by the Applicant in the pleadings based on which relief has been sought by him. The Applicant has also filed rejoinder. The points raised by them shall be dealt with while dealing with their arguments infra.
3. According to learned counsel for the Applicant, while the applicant was working as Addl. General Manager, Odisha, Telecom Circle, BBSR, alleging omission and commission, Disciplinary Proceedings under Rule 14 of CCS (CC&A) Rules, 1965 was initiated against him vide Memorandum dated 18th January, 2022; which he had challenged before this Tribunal. While the matter stood thus, in order to avoid the tit-bit procedure provided to be followed in disciplinary 4 O.A.No. 260/00336 of 2023 proceedings, the Respondents adopted a shortcut method by retiring him compulsorily with stigma. Respondents No.4 constituted Internal Review Committee to assess the suitability of officials/officers for further continuance in service after completion of certain period of service as provided in the Rules vide order dated 31.05.2022 wherein it was also provided that in case of officers with doubtful integrity, the CVO will also be associated in the Review Committee. According to Applicant, association does not mean to become member of the Committee as has been done insofar as the recommendation in respect of applicant is concerned; which is in violation of the specific guidelines issued vide order dated 31.5.2022. It is contended that since the applicant was retired from service compulsorily, the authority concerned should not have withheld the DCRG and CVP until further orders due to pendency of Disciplinary/Criminal proceedings which is against the law laid down by the Hon'ble High Court of Punjab and Harayana in CWP No. 3407/1988 in the case of H.O.Kaushisk vs State of Harayana & Another. It is the case of the Applicant that based on the report of the Internal Committee, the Review Committee so constituted has to take a decision. There was no adverse report of the Internal 5 O.A.No. 260/00336 of 2023 Committee against the Applicant whereas the Review Committee took a different view and, thus, the Review Committee acted contrary to the OMs dated 28.2.2020 and 27.4.2020, which was ultimately accepted by the authority and the applicant was retired from service compulsorily. It is contended that the Memorial/representation submitted by the applicant was rejected by taking grounds which were not part of the report of the Internal Committee or Review Committee and thus, the order of rejection is contrary to the well settled principle of law that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actions and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself as held in the case of Mahinder Singh Gill & Another Vs. The Chief Election Commissioner, New Delhi & Ors, AIR 1978 SC 851 . It is contended that mere filing of FIR for alleged disproportionate assets or pendency of disciplinary proceedings ought not to be a ground to retire 6 O.A.No. 260/00336 of 2023 the applicant compulsorily. According to him, the Respondent- Department exercised the power under Rule 42 without adhering to the law laid down by the Hon'ble Apex Court in the cases of State of Orissa vs Ram Chanddra Das, AIR 1996 SC 2436, State of Gujrat vrs Umedh Bhai M Patel, 2002 (3) SCC 314 and Central Industrial Security Force vrs HC (GD) OM Prakash, providing ingredients under which power can be exercised for retiring a government servant compulsorily. He has also placed reliance on the decisions of CAT Jabalpur Bench dated 22.02.2024 in OA No. 471 of 2023 (Asheesh Pathak vs U OI) and decision of CAT PB, New Delhi dated 3.5.2024 in OA No. 1513 of 2023 (Suresh Kumar vs UOI and others) to substantiate that orders of compulsory retirement imposed on the applicants therein, without adhering to the principles set out by Hon'ble Apex Court are to be declared illegal. Hence, he has prayed for the relief claimed in this OA.
4. On the other hand, learned counsel appearing for the Respondents by reiterating the stand taken in the pleadings countered the arguments advanced by the learned counsel for the Applicant. According to him, the objective of introduction of Rule 42 of CCS 7 O.A.No. 260/00336 of 2023 (Pension) Rules, 2021 is to strengthen the administrative machinery by developing responsible and efficient administration at all levels and to achieve efficiency, economy and speed in the portal of Government functions. In paragraph 3.1 of the DoP&T OM No. 25013/03/2019- Estt.A-IV dated 28th August, 2020, power is vested with the appropriate authority to retire a government servant under FR 56 (1), FR 56 (J) or Rule 48 (1) (b) of CCS (Pension) Rules, 1972 [now Rule 42 of CCS (Pension) Rules, 2021] as the case may be if it is necessary to do so in public interest. It is submitted that on 06.01.1992, applicant joined department of Telecommunications in the Junior Time Scale of Indian Telecom Service (ITS) Group A service. He completed 30 years of service as on 05.01.2022. In terms of Rule 42 of CCS (Pension) Rules, 2021 his service records were reviewed by the department of telecommunications. From the vigilance report, it was observed that his Vigilance Clearance was withheld as the officer has been charge sheeted in two CBI cases which are pending against him. He was in Officers of Doubtful Integrity (ODI) list for the period 2018-2022. His service records were considered by the Internal Committee in its meeting held on 31.10.2022 with 360 degree feedback as suggested in 8 O.A.No. 260/00336 of 2023 DoT OM dated 27.04.2022. A review committee was constituted headed by Secretary of the Department in accordance with DoP&T OM dated 28.08.2020 with association of CVO, DoT. The Committee after taking into consideration all service records of applicant and the report of the Internal Committee recommended his premature retirement under Rule 42 of CCS (Pension) Rules, 2021. It is contended that two broad criteria were provided in paragraph 10 of DoP&T OM dated 28.08.2020 viz; (i) doubtful Integrity and (ii) ineffectiveness. In the present case, the applicant was apprehended by the CBI while accepting bribe of Rs. 1 lakh in one of the cases. After this incident, the applicant was not assigned any sensitive work evolving financial and establishment related sensitive decision. Thus his services cannot be fully utilized because of bar on his posting on sensitive posts. Thus, the recommendation made by the Review Committee was just and proper being in accordance with CVC OM No. 005/CRD/7 dated 17.06.2005 and law laid down by the Hon'ble Apex Court in the case of State of Gujarat vs Umedbhai M Patel, 2002 (3) SCC 314 wherein it was held that whenever the services of a public servant are no longer useful to the general administration the officer can be compulsorily retired for 9 O.A.No. 260/00336 of 2023 the sake of public interest. The CBI case instituted against him is still under trial. Since the applicant was in the ODI list for the years 2018-22 in terms of DoP&T OM dated 28th August, 2020 he was rightly retired prematurely on the criteria of doubtful integrity vide order dated 26.12.2022. However, it is fairly submitted that the memorial/ representation submitted by the applicant was carefully considered by the committee but it did not agree to interfere in the said order on the grounds as under:
"a. He was caught red handed with an amount of Rs. 1.00 lakh and criminal case is under trial;
b. Committee observed that an FIR was also registered against him for possession of disproportionate assets ion comparison to his known source of income;
c. Disciplinary proceedings against the said
officer are underway;
d. Committee observed that Shri Gupta Chandra
Bidika was on ODI list from 2018 to 2022..."
5. Further, it is submitted that delay in conclusion of the disciplinary proceedings is not attributable to the department because, the proceedings got stayed at the behest of the Applicant and that due to pendency of disciplinary/judicial proceedings he has not been paid his dues after retiring him compulsorily. Learned Counsel for the 10 O.A.No. 260/00336 of 2023 respondents has also denied the stand taken by the applicant that the order of compulsory retirement is stigmatic and, therefore, the same is not sustainable since, according to him, mentioning withholding of dues due to pendency of criminal or disciplinary proceedings cannot be treated as stigma in any manner. Accordingly, learned counsel for the respondents has prayed for dismissal of this OA.
6. Before proceeding to deal with the contentions advanced by respective parties, we would like to extract the provision of Rule 42 of CCS (Pension) Rules, 2021 which reads as under:
"42. Retirement on completion of thirty years' qualifying service.-
(1) At any time after a Government servant has completed a qualifying service of thirty years, he may be required by the appointing authority to retire in the public interest and in the case of such retirement, the Government servant shall be entitled to a retiring pension calculated in accordance with rule
44. (2) The appointing authority may give a notice in writing to a Government servant at least three months before the date on which he is required to retire in the public interest or three months' pay and allowances in lieu of such notice. (3) For retirement of a Government servant under this rule, the same procedure, as laid down by Department of Personnel and Training for retirement under rule 56 of the Fundamental Rules, 1922 shall be applicable.
Explanation.- For the purpose of this rule the expression 'appointing authority' shall mean the authority which is 11 O.A.No. 260/00336 of 2023 competent to make appointments to the service or post from which the Government servant retires."
7. We have also come across another decision of Jabalpur Bench of the Tribunal in OA No. 933 of 2018 dated 14.01.2021 (Dr. Mayank Jain vs UOI and others) wherein the Jabalpur Bench of the Tribunal quashed the order of compulsory retirement observing as under:
"22. From the above authoritative law, it is clear that an order of compulsory retirement is not a punishment. The object of compulsory retirement is to weed out the dead wood in order to maintain efficiency in the service and also to dispense with the services of those whose integrity is doubtful. The order of compulsory retirement is distinguished from the order of dismissal and removal, as it does not inflict any punishment on the Government servant. However, in case it is found that the order is stigmatic, then the same would be treated as an order of punishment, which cannot be passed without complying with the provisions of Article 311(2) and the rules of natural justice.
23. In the present case, it is clear from the record that the order of compulsory retirement is based on the allegations of misconduct mentioned in the charge sheet. The order of retirement is also based on the specific allegations or charges for which the applicant was issued the chargesheet. It is on the basis of those allegations and charges, the authority formed an opinion that the applicant lacked in integrity. The order of compulsory retirement is not supported on any adverse confidential reports or performance of the applicant during his service tenure. It is thus clear that the grounds of the order of compulsory retirement are based on the charges of misconduct for which the applicant was issued the chargesheet and was facing a departmental inquiry. The appropriate authority instead of completing the inquiry adopted a short cut method and dispensed with his services on the alleged ground of public interest, and on forming an opinion that the applicant's integrity is doubtful.12 O.A.No. 260/00336 of 2023
24. We also note the fact that the applicant was aged about 51 years at the time of filing this Original Application in the year 2018. It is difficult for us to understand as to why completion of departmental inquiry was not possible when ample time was there for applicant's retirement. The above can hardly be a ground to bye-pass a departmental inquiry. There were specific allegations against the applicant. He faced the departmental inquiry in which the inquiry report was submitted on 01.11.2018 in applicant's favour. Therefore, we conclude that the impugned order of compulsory retirement is clearly punitive and has been passed by way of punishment without following the constitutional provisions contained in Article 311 of the Constitution of India. The power of compulsory retirement cannot be used for an oblique purpose to punish a Government servant for specific misconduct. When the Article 311 of the constitution is already attracted, the Government cannot retire an officer in public interest as principle of natural justice has to be followed."
8. The Ahmedabad Bench of the Tribunal had also quashed the order of compulsory retirement of the Applicant therein (Ravindra Vittal Parmar vs UOI & Ors) in OA No. 369 of 2018 dated 16.04.2019, observing therein as under:
"17. From the Minutes of the recommendations of the Committee, it would appear that that intention of the Director General AIR was to initiate disciplinary proceedings against a Government servant under CCS (Conduct) Rules, 1964. For the misconduct applicant could have been proceeded against under Rule 3(1) (i), 3(1)(ii) and 3 (1)(iii) of the CCS (Conduct) Rules, 1964 but the respondent proceeded under FR 56 (j), which could not have been under the Criteria, Procedure and Guidelines under FR 56 (j). In this context, it is worth mentioning that the Criteria, procedure and guidelines under FR 56 (j) are very clear that these Rules have not been used in this manner as quoted below: It would appear that there has been violation of the Criteria, procedure and guidelines of FR 56 (j) on this account as 13 O.A.No. 260/00336 of 2023 well. Finally, it would be worthwhile to examine the competent authority or appropriate authority has recorded in the file that "the Committee has come to the definite conclusion that he is a thoroughly in disciplined officer. He must not allow to function in the interest of the Organization, Shri Ravindra V. Parmar is a fit case for premature retirement under FR 56 (j). The Committee recommended to retire Shri Ravindra V. Parmar, PEX (in-situ), AIR, Vadodara under 56 (j) based on his indiscipline, various misconducts, doubtful integrity and ineffectiveness."
18. Further to arrive at a conclusion, the relevant file was called for from the department was perused by us minutely and it is seen from that file that the competent authority does not appear to have recorded on the file its opinion regarding the necessity to retire the Government servants in procedure of these Rules as being in public interest and as mentioned earlier it also appears that the order under FR 56(J) has been arrived on the basis of collateral grounds, which is not permissible as stated in the Supreme Court judgment passed in Union of India vs. Colonel J.N. Sinha & Anr. 1971 AIR 40.
19. In view of the above discussions, we are of the considered opinion that the respondents while issuing the impugned order dated 20.07.2018 whereby premature retirement has been directed to the applicant, have not followed the Criteria, Procedure and Guidelines under FR 56(j), and therefore, the same is liable to be quashed. Accordingly, the impugned order dated 20.07.2018 is quashed and set aside. The respondents are directed to reinstate the applicant in service with all consequential benefits.
19. The O.A. is thus allowed as stated above with no order as to costs. M.A. Nos. 350 and 355 of 2018 stated to be pending, stand disposed of accordingly."
9. In M.P. State Co-op Dairy Fedn. Ltd. and Anr. Vs Rajneesh Kumar Jamindar and Others, 2009 (2) S C T 571, Hon'ble Apex Court had culled out principles governing judicial review in respect of an order of compulsory retirement and held as follows:- 14 O.A.No. 260/00336 of 2023
"The law relating to compulsory retirement in public interest is no longer res integra. The provisions had been made principally for weeding out dead wood. An order of compulsory retirement being not penal in nature can be subject to judicial review inter alia:
(i) When it is based on no material;
(ii) When it is arbitrary;
(iii) When it is without application of mind; and
(iv) When there is no evidence in support of the case."
10. The case of State of Gujarat and Another vs. Suryakant Chunilal Shah, (1999) 1 SCC 529, was a case where the State Government had challenged the judgment of the Division Bench of the High Court of Gujarat that had held that the order of compulsory retirement passed against the respondent therein was bad, as there were no adverse entries in his Confidential Report and his integrity was not doubtful at any stage, the Hon'ble Apex Court held thus:
"28. There being no material before the Review Committee, inasmuch as there were no adverse remarks in the character roll entries, the integrity was not doubted at any time, the character roll subsequent to the respondent's promotion to the post of Assistant Food Controller (Class II) were not available, it could not come to the conclusion that the respondent was a man of doubtful integrity nor could have anyone else come to the conclusion that the respondent was a fit person to be retired compulsorily from service. The order, in the circumstances of the case, was punitive having been passed for the collateral purpose of his immediate removal, rather than in public interest."15 O.A.No. 260/00336 of 2023
11. In the case of State of Gujarat vs. Umedbhai M. Patel, 18 (2001) 3 SCC 314, the Hon'ble Apex Court has delineated the following broad principles that ought to be followed in matters relating to compulsory retirement : -
"11. The law relating to compulsory retirement has now crystallized into a definite principle, which could be broadly summarized thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having the regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure."
12. In the case of Captain Pramod Kumar Bajaj v Union of India and another, 2023 LiveLaw (SC) 165 held as under:
16 O.A.No. 260/00336 of 2023
"39. Dehors the aforesaid allegations of institutional bias and malice, having perused the material placed on record, we find merit in the other grounds taken by the appellant. It is noticed that though FR 56(j) contemplates that the respondents have an absolute right to retire a government servant in public interest and such an order could have been passed against the appellant any time after he had attained the age of fifty years, the respondents did not take any such decision till the very fag end of his career. The impugned order of compulsory retirement was passed in this case on 27th September, 2019 whereas the appellant was to superannuate in ordinary course in January, 2020. There appears an apparent contradiction in the approach of the respondents who had till as late as in July, 2019 continued to grade the appellant as 'Outstanding' and had assessed his integrity as 'Beyond doubt'. But in less than three months reckoned therefrom, the respondents had turned turtle to arrive at the conclusion that he deserved to be compulsorily retired. If the appellant was worthy of being continued in service for little short of a decade after he had attained the age of 50 years and of being granted an overall grade of 9 on the scale of 1 - 10 on 31st July, 2019 it has not been shown as to what had transpired thereafter that made the respondents resort to FR 56(j) and invoke the public interest doctrine to compulsorily retire him with just three months of service left for his retirement, in routine. In such a case, this Court is inclined to pierce the smoke screen and on doing so, we are of the firm view that the order of compulsory retirement in the given facts and circumstances of the case cannot be sustained. The said order is punitive in nature and was passed to short-circuit the disciplinary proceedings pending against the appellant and ensure his immediate removal. The impugned order passed by the respondents does not pass muster as it fails to satisfy the underlying test of serving the interest of the public.
40. In view of the above discussion, it is deemed appropriate to reverse the impugned judgment dated 31st May, 2022 and quash and set aside the order dated 27th September, 2019 passed by the respondents, compulsorily retiring the appellant. Resultantly, the adverse consequences 17 O.A.No. 260/00336 of 2023 if any, flowing from the said order of compulsory retirement imposed on the appellant, are also set aside. The appeal is allowed and disposed of on the aforesaid terms while leaving the parties to bear their own costs."
13. In the State of Uttar Pradesh v. Madan Mohan Nagar, (1967) IILLJ 63 (SC), it has been held by a Constitution Bench of the Hon'ble Apex Court that the test to be applied in such matters is "does the order of compulsory retirement cast an aspersion or attach a stigma to the officer when it purports to retire him compulsory?" It was observed that if the charge or imputation against the officer is made the condition of the exercise of the power it must be held to be by way of punishment-otherwise not. In other words if it is found that the authority has adopted an easier course of retiring the employee under Rule 56-J instead of proceeding with and concluding the enquiry or where it is found that the main reason for compulsorily retiring the employee is the pendency of the disciplinary proceeding or the levelling of the charges, as the case may be, it would be a case for holding it to be penal. But there may also be a case where the order of compulsory retirement is not really or mainly based upon the charges or the pendency of disciplinary enquiry. As a matter of fact, in many cases, it may happen that the authority competent to retire 18 O.A.No. 260/00336 of 2023 compulsorily under Rule 56-J and authority competent to impose the punishment in the disciplinary enquiry are different. It may also be that the charges communicated or the pendency of the disciplinary enquiry is only one of the several circumstances taken into consideration. In such cases it cannot be said that merely because the order of compulsory retirement is made after the charges are communicated or during the pendency of disciplinary enquiry, it is penal in nature.
14. In the case of State of U.P vs Abhai Kishore Masta, 1995 SCC (1) 336, it has been held that merely because the order of compulsory retirement was passed during the pendency of a disciplinary enquiry, it must be necessarily deemed to be penal in nature, is unsustainable in law.
15. In the case of State of Gujarat and Ors. vs. Suryakant Chunilal Shah, (1999) 1 SCC 529, paragraph-26 and 27 the Hon'ble Apex Court was pleased to observe as under:
"26. The performance of a Govt. servant is reflected in the annual character roll entries and, therefore, one of the methods of discerning the efficiency, honesty of integrity of a Govt. servant is to look to his character roll entries for the whole tenure from the inception to the date on which decision for his compulsory retirement is taken. It is obvious that if the character roll is studded with adverse entries or the overall categorization of the employee is poor and there is material also to cast doubts upon 19 O.A.No. 260/00336 of 2023 his integrity, such a Govt. servant cannot be said to be efficient. Efficiency is a bundle of sticks of personal assets, thickest of which is the stick of "Integrity". If this is missing the whole bundle would disperse. A Govt. servant has, therefore, to keep his belt tight.
27. Purpose of adverse entries is primarily to forewarn the Govt. servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the Govt. servant, to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance."
16. The Respondents' Counsel relied on the observation of the Hon'ble Apex Court at paragraph 32 to 34 in the case of Baikuntha Nath Das and Anr vs Chief Dist. Medical Officer, 1992 AIR 1020, which are reproduced as under:
"33. Before parting with the case, we must refer to an argument urged by Sri R.K. Garg. He stressed what is called, the new concept of Article 14 as adumberated in Maneka Gandhi (A.I.R. 1978 S.C. 579) and submitted on that basis that any and every arbitrary action is open to judicial scrutiny. The general principle evolved in the said decision is not in issue here. We are concerned mainly with the question whether a facet of principle of natural justice - audi alteram partem - is attracted in the case of compulsory retirement. In other words, the question is whether acting upon undisclosed material is a ground for quashing the order of compulsory retirement. Since we have held that the nature of the function is not quasi-judicial in nature and because the action has to be taken on the subjective satisfaction of the Government, there is no room for importing the said facet of natural justice in such a case, more particularly when an order of compulsory retirement is not a punishment nor does it involve any stigma.20 O.A.No. 260/00336 of 2023
34. So far as the appeals before us are concerned, the High Court which has looked into the relevant record and confidential records has opined that the order of compulsory retirement was based not merely upon the said adverse remarks but other material as well. Secondly, it has also found that the material placed before them does not justify the conclusion that the said remarks were not recorded duly or properly. In the circumstances, it cannot be said that the order of compulsory retirement suffers from mala fides or that it is based on no evidence or that it is arbitrary.
35. For the above reason, both the appeals are dismissed but in circumstances of the case, we make no order as to costs."
17. The observation of the Hon'ble Apex Court in the case of Union of India vs V.P.Seth and another, AIR 1994 SC 1261, is quoted as under:
"3. These principles were reiterated with approval in the subsequent decision. It would, therefore, seem that an Order of compulsory retirement can be made subject to judicial review only on grounds of mala fides, arbitrariness or perversity and that the Rule of audi alteram partem has no application since the Order of compulsory retirement in such a situation is not penal in nature. The position of law having thus been settled by two decisions of this Court, we are afraid that the Order of the Tribunal cannot be sustained as the same runs counter to the principles laid down in the said two decisions."
18. He has also placed reliance on the decision of the Hon'ble Apex Court in the case of State of Punjab vs Gurdas Singh, AIR 1998 SC 1661, to substantiate the line of arguments advanced on behalf of the Respondents that compulsory retirement after the employee has put in 21 O.A.No. 260/00336 of 2023 a sufficient number of years of service having qualified for full pension is neither a punishment nor a stigma so as to attract the provisions of Art. 311 (2) of the Constitution.
19. Next decision relied on by the Respondents' Counsel is in the case of Rajsthan State Road Tranp. & Ors Vs Babu Lal Jangir, AIR 2014 SC 142, relevant portion relied on by him is quoted as under:
"28. It hardly needs to be emphasized that the order of compulsory retirement is neither punitive nor stigmatic. It is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. Interference is permissible only on the ground of non application of mind, malafide, perverse, or arbitrary or if there is non-compliance of statutory duty by the statutory authority. Power to retire compulsorily, the government servant in terms of service rule is absolute, provided the authority concerned forms a bonafide opinion that compulsory retirement is in public interest.(See: AIR 1992 SC 1368)"
20. Relevant portion of the decision in the case of Ram Murti Yadav Vs State of Uttar Pradesh, AIR 2020 SC 227, relied on by the learned counsel for the Respondents is quoted as under:
"13. A person entering the judicial service no doubt has career aspirations including promotions. An order of compulsory retirement undoubtedly affects the career aspirations. Having said so, we must also sound a caution that judicial service is not like any other service. A person discharging judicial duties acts on behalf of the State in discharge of its sovereign functions. Dispensation of justice is not only an onerous duty but has been considered as akin to discharge of a pious duty, and therefore, is 22 O.A.No. 260/00336 of 2023 a very serious matter. The standards of probity, conduct, integrity that may be relevant for discharge of duties by a careerist in another job cannot be the same for a judicial officer. A judge holds the office of a public trust. Impeccable integrity, unimpeachable independence with moral values embodied to the core are absolute imperatives which brooks no compromise. A judge is the pillar of the entire justice system and the public has a right to demand virtually irreproachable conduct from anyone performing a judicial function. Judges must strive for the highest standards of integrity in both their professional and personal lives.
14. It has to be kept in mind that a person seeking justice, has the first exposure to the justice delivery system at the level of subordinate judiciary, and thus a sense of injustice can have serious repercussions not only on that individual but can have its fall out in the society as well. It is therefore absolutely necessary that the ordinary litigant must have complete faith at this level and no impression can be afforded to be given to a litigant which may even create a perception to the contrary as the consequences can be very damaging. The standard or yardstick for judging the conduct of the judicial officer therefore has necessarily to be strict. Having said so, we must also observe that it is not every inadvertent flaw or error that will make a judicial officer culpable. The State Judicial Academies undoubtedly has a stellar role to perform in this regard. A bona fide error may need correction and counselling. But a conduct which creates a perception beyond the ordinary cannot be countenanced. For a trained legal mind, a judicial order speaks for itself."
21. Lastly, learned counsel for the Respondents placed reliance on the decision of the Hon'ble Court in the case of Central Industrial Security Force Vs HC (GD) OM Prakash in Civil Appeal No. 5428 of 2012 dated 04.02.2022 in which the order dated 14.10.2011 quashing the compulsory retirement upon Om Prakash by the Hon'ble High 23 O.A.No. 260/00336 of 2023 Court of Delhi was challenged and the Hon'ble Apex Court quashed the said order of the Hon'ble High Court. It is submitted that this being a case similar to the case of Om Prakash this OA is liable to be dismissed.
22. We have examined the case in hand with reference to the decisions quoted above including the cases cited by learned counsel for the Respondents. One thing is made ample clear from quoted decisions that judicial interference in the order of compulsory retirement imposed on an employee in exercise of power conferred under Fundamental Rule 56 (J) or 42 of CCS (Pension) Rules, 2021 is not completely wiped out. Such judicial interference in the order of compulsory retirement is permissible where miscarriage of justice is caused in the decision making process of the matter and not in the decision itself viz; where such an order is passed without application of mind, mala fide, perverse, or arbitrary exercise of power or by an authority who is not competent to do so and/or if there is non- compliance of statutory duty by the statutory authority.
23. The order of compulsory retirement dated 26.12.2022 (A/4) reads as under:
24 O.A.No. 260/00336 of 2023
"Whereas the President is of the opinion that it is in the public interest to do so;
Now, therefore, in exercise of the powers conferred by Rule 42 of CCS (Pension) Rules 2021, the President hereby retires Shri Chandragupta Bidika (Staff No. 20269) with immediate effect, he having already completed 30 years of service. The President also directs that Shri Chandragupta Bidika shall be paid a sum equivalent to the amount of his pay plus allowance for a period of three months calculated at the same rate at which he was drawing them immediately before his retirement.
Further, in view of the pending disciplinary/criminal proceedings, DCRG and CVP of the officer may be kept withheld till further order."
24. In the counter, respondents have fairly and candidly disclosed their mind that the representation committee examined the grounds and conditions leading to orders under Rule 42 of CCS (Pension) Rules, 2021, taking into consideration that the applicant was caught red handed with an amount of Rs. 1,00,000/- and criminal case is under trial; FIR lodged against him for possessing disproportionate asset to his known source of income; disciplinary proceedings against him are underway and applicant's name in the Officers with Doubtful Integrity list of 2018-22 maintained by the department. Further, the Committee in its report has observed as under:
"3. The Review Committee noted that APAR grading of Shri Chandragupta Bidika (Staff No. 20269), (Date of birth 04/04/1967) (Date of 25 O.A.No. 260/00336 of 2023 Joining-06/01/1992) for the years 2011-2012 to 2020-21 are outstanding during 8 periods and very good in 2 periods. His integrity reflected in the APAR is 'Beyond Doubt'. However, from Vigilance history of the officer, the Committee observed that:
(i) Prosecution sanction was issued vide order No. 9-27/2017-Vig.I dated 27.03.2018 in RC 6 (A)/2017-BBS. Case is under Trial. Charge Sheet has been filed by the CBI, Bhubaneswar in this case. NO RDA was issued in this case."
25. Thus, it is clear from the record that the compulsory retirement of the applicant is solely based on mere hunch of authority that it is a case of doubtful integrity due to initiation of Criminal Case against him. It may be recorded that to bring an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. Only initiation of disciplinary proceedings or criminal proceeding against an employee cannot be a ground to record that his integrity is in doubt, which is also the law of the land. At this stage, we may record that though we fully appreciate the anxiety of the government to weed out corrupt officers from public service, at the same time, we cannot ignore 26 O.A.No. 260/00336 of 2023 the fact that in carrying out the said purpose, mere suspicion should not be allowed to take the place of proof. Time and again it has been held that scrupulous care must be taken to see that innocent are not punished also applies to the disciplinary inquiry held under the statutory rules (vide UOI Vs. H.C.Goel, AIR 1964 SC 364). Further, in the case of Varkey Josheph Vs. State of Kerala, AIR 1993 SC 1892, it has been held by the Hon'ble Apex Court that suspicion is not the substitute of proof. There is long distance between "may be true" and "must be true" and the prosecution has to travel all the way to prove its case beyond all reasonable doubt. In the instant case, it is established that the foundation of invocation of power under Rule 42 is for initiation of criminal case, disciplinary proceeding and caught red handed while taking 1 lakh rupees as bribe, which are still underway and, in the circumstances, we see much force in the submission of the Ld. Counsel for the applicant that the compulsory retirement of the applicant is based on mere hunch despite eight outstanding grades in APAR and two very good during the years 2011-2012 to 2020-21 and his integrity reflected in the APAR is 'Beyond Doubt'.
26. Add to the above, it may be noted that the respondents in their 27 O.A.No. 260/00336 of 2023 reply have submitted that from the vigilance report it was observed that his vigilance clearance was withheld as the officer has been charge sheeted in two CBI cases, which are pending against him and, therefore, he was in officers with doubtful integrity list for the period 2018-2022. Further, it is noticed that in the order of compulsory retirement dated 26.12.2022, it has been mentioned that his DCRG and CVP may be kept withheld till further orders due to pending disciplinary/criminal proceedings. Thus, it is established that his name was placed in the ODI list because of the initiation of CBI case, which was the basis to retire him compulsorily irrespective of his eight outstanding grades in APAR and two very good during the years 2011-2012 to 2020-21 and his integrity being mentioned 'Beyond Doubt' in his APAR and, therefore, it can safely be concluded that the order of compulsory retirement is penal in nature, which ought not to have been done without following due procedure of rule and law. Similarly, we find that the representation/memorial submitted by the applicant was rejected in an unreasoned order without meeting and answering the points raised by the applicant but also without taking the law discussed above.
27. In the case filed before the CAT, PB, New Delhi by Shri Suresh 28 O.A.No. 260/00336 of 2023 Kumar, who was an ITS Officer, Gr. A in BSNL and was retired compulsorily under Rule 42, the CAT, PB, New Delhi, after examining the matter quashed the order of compulsory retirement. Relevant portion of the order is quoted herein below:
"22. One very curious fact which finds mention in the minutes of both the Review and Representation Committees is that, predominantly, grading in the APARs of the applicant had been outstanding. In fact, reference has been made to ten of his APARs, of which eight are "outstanding", one is "very good" and for one year he has not been graded.
23. Now, the confines of judicial scrutiny of an order passed under Rule 42 of CCS (Pension) Rules, 2021 and FR 56(j) may be limited and there may not be sufficient material before the judicial fora to determine the competence or otherwise of an employee, however, the glaring facts before us cannot be ignored. Here is an officer/applicant whose record has been, by and large outstanding, who has been exonerated in the disciplinary proceedings long back and who has also been acquitted in the criminal trial against him; and if this is not enough, the appeal against his acquittal has also been dismissed.
24. Against this background, it fails to justification as to how the provisions of Rule 42 of CCS (Pension) Rules or FR 56(j) could be invoked. If these were still to be invoked, how could reliance be placed upon wrong facts as also by drawing an inference which runs contrary to the findings of the appropriate Courts.
25. In view of what has been elaborately outlined above, we have no hesitation in holding the impugned order to be perverse as it is based on wrong and incorrect facts and thus, suffers from arbitrariness. Accordingly, while allowing the Original Application, we quash and set aside the order dated 26.12.2022 vide which the applicant has been ordered to be compulsorily retired from service. As a consequence to this order, the applicant would be deemed to have been reinstated w.e.f. the date he was relieved pursuant to order dated 26.12.2022. As a consequence to quashing and setting aside the order dated 29 O.A.No. 260/00336 of 2023 26.12.2022, the minutes and recommendations of both the Review and Representation Committees too are quashed and set aside since they have relied upon wrong and incorrect information. Needless to say that the applicant shall be entitled to all the consequential benefits as may accrue in accordance with Rules. The directions contained herein shall be complied with by the respondents within a period of four weeks from the date of receipt of a copy of this order.
26. In the facts and circumstances of the case, learned counsel for the applicant does not press for award of cost and hence, there shall be no order as to costs."
28. We have gone through the decision of CAT, Jabalpur Bench filed by Shri Asheesh Pathak, who was also an Officer of Indian Telecom Service, Gr. A, in the BSNL, against whom Criminal Case registered by the CBI was pending and he was imposed with the punishment in major disciplinary proceedings. He was retired compulsorily, which order he had challenged before the Jabalpur Bench of the Tribunal. The Jabalpur Bench of the Tribunal after taking note of facts of the matter, rules and law finally quashed the order of compulsory retirement imposed on him. Relevant portion of the order is quoted herein below:
"13. The Office Memorandum dated 27.04.2022 regarding SOP for review under FR 56(j) provides for broad criteria to be followed by the Review Committee. The same has been reproduced below for ready reference:
"D. Broad criteria to be followed by the Review Committee
10. Broad criteria to be followed by the Review Committee while making the recommendations are as follows:30 O.A.No. 260/00336 of 2023
(i) If the integrity of the Government servant is doubtful, he/she shall be retired.
(ii) If the integrity of the servant is not doubtful, then following criteria will be followed:
(a) If the Government servant has been promoted to a higher post during the preceding 5 years, then the Government servant should not be retired.
(b) If the Government servant is going to be superannuated within one year from the date of consideration of his case by the Review Committee, then the Government servant should not be retired. However, in a case where there is a sudden and steep fall in the competence, efficiency or effectiveness of a Government servant, it would be open to review such a case also for premature retirement.
(c) If the Government servant is not falling the categories of (i) and (ii) above, and falls in either of the following categories, then the Government servant shall be retired unless the Review Committee records otherwise after due deliberation:
(a) In departmental proceedings involving separate offences/charges, at least 2 Major Penalties; or 1 Major and 2 Minor Penalties; or 3 Minor Penalties have been imposed on the Government servant during entire service period of the Government servant.
(b) If the Government servant is convicted by any court of law in preceding 10 years and there is no appeal pending against such judgment of the Court.
(c) If in at least three APARs within the last 10 years, the grading is below the benchmark for promotion to the next higher grade-
provided that the said grading has been reviewed and accepted (if applicable) by different authority as well.
(d) If the Government servant's reputation, as ascertained by Internal Committee through 360-degree feedback convinces the Review Committee that the Government servants' further continuance in service is not in the public interest."
14. The Review Committee while implementing the SOP referred in OM dated 27.04.2022 has only taken into consideration the 31 O.A.No. 260/00336 of 2023 two penalties awarded to the applicant. The other criteria to be followed by the Review Committee as provided in the OM dated 27.04.2022 have been totally ignored by the Review Committee. It has failed to consider the fact that the applicant was promoted twice during the preceding five years period and also the APAR of the applicant for the last 10 years were up to the Benchmark required for further promotion. The penalties for which the applicant was awarded punishment were also the subject matter before the CBI Court in two different cases and both those cases, the applicant has been acquitted. Thus, the conclusion arrived at by the Review Committee regarding doubtful integrity of the applicant does not appear to be justified especially after the outcome in the CBI cases.
15. It is also important to note that as per existing rules and regulations, whenever case of an officer is considered for retention in service under Rule 42 of CCS (Pension) Rules, 1972, no opportunity of hearing is provided to the concerned officer. Therefore, it is incumbent upon the Review Committee to consider available records meticulously in an unbiased manner, which has not been done in the present case. The Review Committee failed to acknowledge latest service records like past 10 years APAR/ACR, integrity as mentioned in APAR and performance of the applicant. Thus, the opinion formed by the Review Committee tends to become a penalty under Rule 48 when the Review Committee has invoked this provision in the absence of proper material.
16. We also find from the record that in both the departmental cases, the charges against the applicant were not conclusively proved by the Department and the decision to impose punishment was arrived on the basis of preponderance of probability only. Further, the Internal Review Committee has explicitly mentioned in its report that there were no pending complaints or disciplinary actions against the applicant. It has also accorded its approval that the applicant is free from vigilance angle. But the Review Committee formed his independent opinion by declaring the applicant's integrity doubtful. It is also pertinent to mention that from the date of formation of BSNL since 2000, the applicant is working with the BSNL and not with DoT. However, the advice of the BSNL under whose direct supervision the applicant is working was not 32 O.A.No. 260/00336 of 2023 sought for by the DoT. Thus, we are of the considered opinion that the Review Committee has erred while taking the decision to prematurely retire the applicant under FR 56(j) read with Rule 42 of CCS (Pension) Rules, 1972.
17. Considering the overall facts and circumstances of the case, we quash and set aside the orders dated 26.12.2022 (Annexure A-7) and 13.12.2022 (Annexure A-10) prematurely retiring the applicant. The applicant shall be reinstated back in service forthwith with all consequential benefits. Let the necessary orders be passed within a period of three month from the date of receipt of a certified copy of this order.
18. Accordingly, this Original Application is allowed. No order as to costs."
29. On examination of the facts in hand with reference to the provisions of the Rules and law laid down in the case of Suryakant Chunilal Sahah, Umedbhai M.Patel and Capt. Pramod Kumar Bajaj (supra) we find sufficient force on the submissions of the learned counsel for the applicant that there has been miscarriage of justice caused to the applicant in the decision making process of the matter requiring judicial interference by this Tribunal. Accordingly, the impugned orders dated 26.12.2022 and 13.04.2023 are quashed and, consequently, the respondents are directed to reinstate the applicant with notional fixation of his pay without any backwages. Respondents are also directed to pass the consequential order within a period of 60 days from the date of receipt of a copy of this order. 33 O.A.No. 260/00336 of 2023
30. In the result, the OA stands allowed to the extent stated above leaving the parties to bear their own costs.
(Pramod Kumar Das) (Sudhi Ranjan Mishra) Member (Admn.) Member (Judl.) RK/PS