Central Administrative Tribunal - Delhi
Vinay Brij Singh vs D/O Revenue on 29 May, 2025
Item No. 40 (Court-V) O.A. No.1007/2021
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1007/ 2021
Reserved on: 14.05.2025
Pronounced on: 29.05.2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
Sh. Vijay Brij Singh (retd.), Age about__ years,
S/o Sh. Brij Prasad Singh, Flat no.6556, C
C-6,
Vasant Kunj, New Delhi-110070.
Delhi
...Applicant
(By Advocates: Ms. Kamini Lau with Mr. Virender Kum
Kum)
Versus
1. Union of India through Ministry of Finance,
Rajpath Marg, E Block,, Central Secretariat, New
Delhi
Delhi-110011.
2. Directorate of Revenue Intelligence through
Revenue Secretary, 7th Floor, D Block, I P Bhawan,
I P Estate, New Delhi-110002.
Delhi
...Respondents
(By Advocates: Mr. Ravi Prakash, Hanu Bhaskar, Mr. Taha Yasin,
Mr. Farman Ali, Mr. Astu Khandelwal)
Page 1 of 20
Item No. 40 (Court-V)
(Court O.A. No.1007/2021
ORDER
Hon'ble Mr. Manish Garg, Member (J):
(J):-
In the present Original Application, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following relief(s):
1) Issue an appropriate order or direction, to declare as illegal, and to quash and to set aside, the impugned order no. 76/2019 dated 18.06.2019 and order issued from F. No. C-50/50/2019-Ad.II C Ad.II dated 17.09.2019 and to reinstate the Applicant along with the consequential consequential benefits of arrears of salary, rank and increments with interest @ 18% р.а.
II) Issue directions to the Respondents to continue the Applicant in service with all consequential benefits till he attains the age of superannuation.
III) Exemplary cost cost be imposed on respondents for causing undue harassment to the Applicant.
IV) Any other relief which is found just and proper be passed in favour of the applicant in the interest of justice."
2. Highlighting the facts of the case, learned counsel for th the applicant submitted that the present O.A. has been preferred by the applicant challenging the order no. 76 of 2019 dated 18.06.2019 purportedly issued by the respondents under clause (J) of Section ection 56 oof the Fundamental Rules, vide which they have illegally and prematurely retir retired the applicant while under suspension from his post as the Commissioner, CESTAT, Calcutta, which action was/is in gross violation of the settled law as well as the provisions of Rule 56 (J) itself. Ventilating this grievan grievance, the applicant preferred a representation dated 05.07.2019, which was disposed of by the respondents vide the impugned order No. F. No. C C-50/53/2019-Ad.ll dated 17.09.2019.
2.1. Learned earned counsel for the applicant submitted that the Review Committee recommended recommended the case of the applicant for compulsory Page 2 of 20 Item No. 40 (Court-V) (Court O.A. No.1007/2021 retirement mainly for his alleged conduct/role in a case of money laundering to the tune of Rs 154.88 Cr, Cr which is baselesss and without merits.
2.2. Learned earned counsel for the applicant contended that in the counter affidavit, it has been stipulated that the decision of the Review Committee took note of the aforesaid principles and after taking into consideration consideration, the entire service records of the Officer including his Charge Sheets etc, recommended ed his name for pre-mature pre mature retirement under FR 56 (J (J), which was accepted by the appropriate Authority. However, till date no charge sheet prior to the review was issued to the applicant. Learned counsel further submitted that how the Review Committee arr arrived at such a conclusion/decision is not known as there is no material on record or documents to support such wild allegations. Learned counsel added that the applicant seeks to challenge the stigma casted on the service rendered by him with unblemished record as a Group A officer having served for more than 23 years.
2.3 Learned counsel further highlighted the Office Memorandum dated 10.05.1974, which reads as under:
"Subject: Strengthening of administration Premature retirement of Central Govt. Servants - Procedure to be followed - Gazetted Oficers holding posts initial appointment to which is referable to the Appointments Committee of the Cabinet - Reference of cases to the Establishment Officer to the Government of India The undersigned is directed to to refer to Item 1(a) of Appendix II to the Ministry of Home Affairs (now Departent of Personnel and A.R.) O.M. No. 33/13/61 33/13/61-Ests (A) dated the 23 June 1969 as modified by O.AM. No. 33/9/79 Ests (A) dated the 10th September 1971 and to say that the procedure procedure for the review of the cases of Gazetted Officers holding posts. initial appointment to which is referable to the Appointments Committee of the Cabinet, is as follows: -
"The Senior Selection Board in respect of officers of the rank of Joint Secretary or equivalent of the Central Establishment Board in respect of officers above the rank of under Secretary but below the rank of Joint Secretary or equivalent as the case may be, will make its recommendations which will be placed before the Appointments Committee Committee of the Cabinet for orders. In respect of officers of the rank of Additional Secretary, special Secretary and Secretary to the Govt. of India, Page 3 of 20 Item No. 40 (Court-V) (Court O.A. No.1007/2021 the Cabinet Secretary will make his recommendation directly to the Appointments Committee of the Cabinet for orders. Where action is proposed to be taken on grounds of lack of integrity the Central Vigilance Commission shall be consulted before the case is placed before the ACC.
It has also been provided in the O.M of 23rd June 1969 that the review in all cases should be undertaken six months before the officer concerned attains the age of 50/55 years, In spite of these clear instructions instances have occurred where cases to be placed before the Senior Selection Beard or the Central Establishment Board, as the case may be have not been referred to the office of the Establishment Officer well in time. It is, therefore, requested that proposals in this regard in respect of Gazetted officers holding posts, initial appointments to which are referable to the Appointments Appointments Committee of the Cabinet may please be referred with a self contained note to the Establishment Officer at least four months in advance of the date on which the officer (s) concerned are due to attain the age of 50/55 years"
2.4. Learned counsel further ther stated that the OM dated 10.05.1974 was later reiterated vide Office Memorandum Memorandum dated 11.09.2015. She contended that the applicant is holding a Group 'A' post and as per the OM dated 11.09.2015, the Review Committee in his case will be as under:
under:-
"(A)) In case of officers holding Group A posts:
(a) In r/o ACC appointees:
Review committee may be headed by the Secretary of the concerned Ministry/ Department as Cadre Controlling Authority."
Authority.
2.5. Highlighting the afore-quoted, afore quoted, learned counsel contended that no ACC approval or procedure in terms of O.M. O of 1974 as well as 2015 has been followed, which vitiates the proceedings.
2.6 Additionally, the applicant's counsel cited the decision of the Customs, Excise and Services Tax Appellate Tribunal, Mumbai, West Zonal Bench in Customs Appeal No. 85945 of 2020 with Cross Cross-Objection No. 85419 of 2020, dated March 24, 2025. The counsel argued that this order vindicates the applicant's stance, rendering the compulsory retirement punishment under Rule 56(J) unjustified. Furthermore, this fact suggests that the Review Committee ommittee failed to consider the facts of the case properly, and therefore, Page 4 of 20 Item No. 40 (Court-V) (Court O.A. No.1007/2021 the decision to compulsorily retire the applicant should be declared null and void, and subsequently quashed and set aside.
2.7. Learned counsel further relied upon the decision rendered by this Tribunal in O.A. No.2440/2023 dated 30.04.2024 in the case of Gurjinder Pal Singh vs. Union of India and Anr. The relevant paras paras. of the judgments are highlighted as under:
un "35. We, therefore, feel that in view of the major difference of opinion between the Reporting Officer and Reviewing/Accepting Authority, it was incumbent upon the Reviewing/Accepting Authority to specifically bring out the reasons for disagreeing with with the excellent evaluation of the Officer (applicant) given by the Reporting Authority.
36. In view of the above, it is felt that the downgradation of the overall performance from 7.90 to 6.00 has not been substantiated by any logical reasoning, which was required to be given by the Reviewing/Accepting Authority.
Therefore, justification for this downgradation is conspicuous by its absence.
37. The applicant had made a representation against the down grading of ACR/APAR but his representation was notdecided notdecided within limitation. Aggrieved by this inaction, the applicant had preferred O.A. No.02/2022 before the Jabalpur Bench of the Tribunal against the arbitrary action of down grading of the aforesaid ACR of the applicant. This O.A. is stated to be pending consideration before the Jabalpur Bench of this Tribunal.
***************
43. With regard to the last ground that the chargecharge-sheet was issued to the applicant on 12.08.2021 and he is adopting delay tactics to prevent completion of the inquiry proceedings, proceedings, we do not find any truth in it. Respondent No.2 has not disputed that despite a lapse of more than two years, the Inquiry Officer has not been appointed till date. This charge-sheet charge sheet contains seven articles of charge and most of these charges are based uponupon the FIRs and SCN, referred to earlier. Respondent No.2, in terms of the settled law, was mandated to take the departmental inquiry to its logical end; however, they resorted to retire the applicant compulsorily as a shortcut to avoid completion of the ddepartmental inquiry and the disciplinary action initiated by way of the charge sheet.
44. Howbeit, there are conflicting claims by the applicant on the one hand and both the respondents on the other, regarding supply of complete set of documents in respect of the charge-sheet, sheet, the fact remains that respondent No.2 has not appointed any Inquiry Officer till date and, therefore, the submission of respondent No.2 that the applicant is responsible for delaying the culmination of the disciplinary inquiry, cannot be accepted. Respondent No.2 was duty bound to take disciplinary inquiry to its logical end and could not have passed the impugned compulsory retirement order of the applicant as a shortcut to avoid inquiry.
45. In the facts and circumstances enumerated above, we are of the opinion that the applicant, has been retired compulsorily as a punitive measure. We also find that the order of compulsory retirement has been passed as a shortcut to avoid the Page 5 of 20 Item No. 40 (Court-V) (Court O.A. No.1007/2021 departmental inquiry. The impugned order, retiring the app applicant compulsorily, cannot be sustained in the eyes of law.
46. Resultantly, the O.A. is allowed and the impugned order is quashed and set aside. The respondents are directed to reinstate the applicant, with all consequential benefits, within a period of four weeks from the date of receipt of a certified copy of this Order."
2.8. She also relied upon the decision rendered by the Bangalore Bench of this Tribunal in O.A. No.170/00514/2020 dated 17.07.2023 in the case of Deepak M Ganeyan vs. The Union of India India and Ors Ors, The relevant paras of the judgments highlighted as under:
"36. In our considered view, removal of the applicant merely based on alleged incident on which disciplinary inquiry is ongoing makes the compulsory retirement of the applicant punitive, punitive, as a penalty for misconduct or a dismissal clothed as compulsory retirement. The applicant's ACR/APARs and the entire service records have not been considered by the Review Committee to arrive at a conclusion. The compulsory retirement order has been papassed sans following the legal principles laid down by the Hon'ble Apex Court discussed above.
37. It is trite law that the order of compulsory retirement is not a punishment under Article 311 of the Constitution. However, in the background of the case as narrated in the preceding paragraphs, without any hesitation, it could be held that as a substitute, if a short cut measure is adopted to punish the applicant sans taking the disciplinary proceedings to the logical end, the object of compulsory retirement decision taken unilaterally to remove the applicant becomes questionable. It isvery surprising that no disciplinary proceedings were concluded from 2014 till the date of passing of the order of compulsory retirement on 23.08.2019 despite noticing the letter letter issued by the Commissioner of Central Tax dated 24.06.2019 and reminder dated 01.08.2019 to the Inquiry Officer to complete the inquiry proceedings. Taking a bypass route for the removal of the applicant entails us to disapprove such action, but for this reason, this Tribunal would not have ordinarily interfered with the FR 56 (j) order. On the other hand, in the guise of pending disciplinary proceedings, granting provisional pension without settlement of retiral benefits would defeat the purport of compucompulsory retirement. Respondents cannot sleep over the matter for years, after issuing the compulsory retirement order when the disciplinary proceedings are continued against the retired employee. Lackadaisical attitude of the respondents raises doubt about thethe proceedings initiated against the applicant. A tainted officer if proved with the charges has to be punished appropriately. Keeping the disciplinary proceedings alive for years together is not good in the interest of the litigant as well as the administration administration as the evidence may get diluted/destroyed owing to passage of time."
2.9. Concluding her arguments, learned learned counsel for the applicant emphasized that the imposition of compulsory retirement under Rule 56(J) was made without proper consideration. Sh She referred to the written submissions dated 10.02.2025, 10.02.2025, which cited various Hon'ble Supreme Court Page 6 of 20 Item No. 40 (Court-V) (Court O.A. No.1007/2021 decisions. Additionally, she argued that even if for the sake of arguments, the respondents viewed the applicant as underperforming or dead wood, the fact remains that only provisional pension has been provided to the applicant to date. This is despite the respondents' claims in the counter affidavit that the applicant had been compulsorily retired with all due benefits.
3. Opposing the grant of relief, learned counsel for the respondent drew our attention to the following facts:
3.1. On 25.06.2018, M/s Antique Exim Private Limited, having IEC IEC-
5211029097 and M/s Tanman Jewels Private Limited, having IEC IEC-
5209062589, filed 14 Bills of Entry, all dated 25.06 25.06.2018 through their Customs Broker M/s Impress Clearing and Forwarding Pvt. Ltd. for clearance of 'Rough Diamonds' having total declared value of Rs. 156.28 Crore. The aforementioned goods were referred to the Panel Members for verification of correctness of declared description, quality/grade and value. The said goods were examined by Panel Members Paresh Shah and Pradeepkumar J. Jhaveri on 27.06.2018, and upon verification/examination, both the Panel Members certified the declared value as 'F 'Fair'. It is pertinent to note that the name of Paresh Shah was not prescribed for valuation of the goods at PCCCC on 27.06.2018 as per Roster of Trade Advisory Expert Valuers. Despite this, this, the concerned Customs Officers called him for valuation of the he said consignments.
consignments. It is worth noting that Mahesh Vaghani, whose name was on the Roster for valuation of the goods on 27.06.2018, was not shown the said parcels despite his query from the Customs Broker. Subsequently, he registered his observations in the Panel Member Re Register Page 7 of 20 Item No. 40 (Court-V) (Court O.A. No.1007/2021 clearly mentioning that the said 14 consignments of Rough Diamonds imported by M/s Antique Exim Private Limited and M/s Tanman Jewels Private Limited were grossly overvalued.
3.2. With reference to Office Note dated 28.06.2018 issued by the applicant, ant, the said 14 consignments of Rough Diamonds were subsequently re-verified/re-examined examined by the Panel Member Naresh Nagindas Mehta on 29.06.2018, in presence of the DC, SIIB, among others. Naresh Nagindas Mehta also certified the declared value as 'Fair'. On the basis of specific intelligence developed by the officers of Directorate of Revenue Intelligence (DRI), the aforementioned 14 consignments of Rough Diamonds, imported by M/s Antique Exim Private Limited and M/s Tanman Jewels Private Limited were kept kept on hold vide DRI letter dated 10/11.07.2018 directing the custodian BDB not to give delivery of these consignments or to clear / dispose /remove /alter/tamper / part with the subject goods. During the course of investigation, the subject goods were re re-verified/re-examined by 4 experts on 11.07.2018. The said good were found having value of Rs. 1.03 Crore only. Subsequently, statements of Trade Advisory Expert Valuers Pradeepkumar J. Jhaveri, Shri Paresh D. Shah, Naresh N. Mehta and employee of Customs Broker Broker Vishal Suresh Kakkad were recorded on varying dates under Section 108 of the Customs Act, 1962. Naresh N. Mehta had admitted that he was offered Rs 25 Lakhs by Atul Padlecha for ensuring favorable reports of valuation pertaining to the said 14 consignm consignments. Paresh D Shah has stated in his statement that due to monetary consideration he gave 'Fair Value' report to the overvalued consignments. Pradeepkumar J. Jhaveri also admitted in his statement that he was promised by Girish Kadel Page 8 of 20 Item No. 40 (Court-V) O.A. No.1007/2021 to give Rs 5 lakhs if he certifies the values of the said consignments as 'Fair. On 12.07.2018, Trade Advisory Expert Valuer Pradeepkumar J. Jhaveri, Paresh D. Shah, Naresh N. Mehta and employee of Customs Broker Vishal Suresh Kakkad were arrested for their role in these fraudulent imports, under the provisions of Section 104 of the Customs Act, 1962, for the offences punishable under Section 135 of the Customs Act, 1962. 3.3. During recording of statements of officers in DRI, Mumbai Zonal Unit, it came to notice that the original Note Sheet Page No. III of File No. S/43- Misc-01(46)/2018-19PCCCC wherein the overvalued consignments were directed for further investigation by SIIB, APSC was changed with recommendations for clearance of the overvalued consignments under the instructions of the applicant. The facts regarding replacement of the Note Sheet has been stated by Ashiquzzaman, Deputy Commissioner, in his statement dated 16.07.2018, Chandravanshi Yaduvanshi Manikanhaiya, Deputy Commissioner, in his statement dated 16.07.2018, Jitendra Bahadur Singh Patel in his statement dated 17.07.2018 and Hawa Singh, Assistant Commissioner in his statement dated 18.07.2018. It was specifically stated by all of them that the Note sheet Page No. III of the said File was not the same as they had seen earlier. It was noticed that two of the three Trade Advisory Expert Valuers namely Paresh Shahand Pradeep Kumar Jhaveri who had certified the valued Rough Diamonds consignments of M/s Antique Exim Private Limited and M/s Tanman Jewels Private Limited as fair were empanelled as Trade Advisory Expert Valuers vide Standing Order No. 02/2017 dated 20.11.2017 issued by the Applicant/issued under the directions of the Applicant, despite reservations from the Gem & Jewellery Page 9 of 20 Item No. 40 (Court-V) (Court O.A. No.1007/2021 Export Promotion Council (GJEPC). After fter the Issuance of the aforementioned Standing Order, GJEPC vide letter dated 24.11.2017 had specifically flagged this issue and addressed to the Applicant/Commissioner of Customs, APSC. Further, the third Trade Advisory Expert Valuer, Naresh Mehta hta who had certified the overvalued consignments as fair in the presence of DC, SIIB, APSC APSC had admitted of meeting the aapplicant before the said valuation. The forensic evidence also indicates that the applicant was in touch with Naresh Mehta during the material material period of the said valuation.
Contrary to the claim of the applicant that he was nowhere concerned with the valuation of the goods at PCCCC, it appears that he was in touch with the Trade Advisory Expert Valuer and had directed the Valuer for givin giving a fair value certificate.
3.4. Further, the applicant applicant had initially referred the matter for further investigation to SIIB. However, later on the Note Sheet Page containing directions of further investigation was changed with the Note Sheet with the directions ections of clearance of the consignments. All these are grave acts of omission and commission by the applicant.
applicant. It is stated that Show Cause Notice dated 10.07.2019 has been issued to the importers M/s Antique Exim Private Limited and M/s Tanman Jewels Private Private Limited Private for the live consignments of imported overvalued overvalued Rough Diamonds, in which the applicant pplicant has also been made a Noticee, among others. However, investigation in respect of the past clearances is still under process and upon completion of the same, a separate Show Cause Notice will be issued. The matter was referred to DG, DGoV (Hqrs), New Delhi vide letter F.No.DRI.F.No.C 31018/01/Misc/2018 dated 20/27.08.2018 for appropriate F.No.DRI.F.No.C-31018/01/Misc/2018 Page 10 of 20 Item No. 40 (Court-V) (Court O.A. No.1007/2021 action. In turn, DGoV (Hqrs) vide letter F.No.V.521/25/2018 date dated 11.09.2018 forwarded the proposal to Ad.V, CBIC for consideration of action, if any, regarding suspension of the officer/officers as per DOPT O.M. No. 11012/17/2013-Estt(A) 11012/17/2013 Estt(A) dated 18.11.2014. Accordingly, the matter was examined in the Ministry Mini and the officers ficers viz. the aapplicant, Shri C. Y. Manikanhaiya, Deputy Commissioner and Shri Ashiquzzaman, Deputy Commissioner were placed under suspension with immediate effect vide Board's Orders dated 25.10.2018. Their suspension was further reviewed by the Suspension ion Review Committee and the review committee after considering the following points inter-alia, inter alia, recommended for continuation of suspension of the said officer: (i) That Member (Admin) has given approval for referring the matter to CBI for investigation an and this was communicated to DRI, New Delhi vide DGoV's letter dated 19.09.2018; (ii) The DRI vide letter dated 10.01.2019 has intimated that investigation is going on and also extension for issue of Show Cause Notice has been given by the jurisdictional Commissioner.
Commissioner. Thus, it is recommended that the suspension of the Applicant, Commissioner, C.Y Manikanhaiya, Deputy Commissioner and Ashiquzzaman, Deputy Commissioner, may continue for the time being. Accordingly, suspension of above-mentioned above mentioned officers was ext extended for 180 days vide Board's order dated 21.01.2019.
3.5. Learned counsel for the respondents further submitted that the contracts of employment are to be performed in good faith. In the present case, it is absolutely clear that the Officer was engross engrossed in several allegations of misconduct. The Officer had already completed substantial part of his service. It would be prudent and in larger public interest to retire Page 11 of 20 Item No. 40 (Court-V) (Court O.A. No.1007/2021 the Officer and instead give opportunity to other officer(s) with better integrity and credentials.
redentials. The Review Committee, after examination of entire service records of the applicant, reached the conclusion that the Officer was not just alleged to be involved in some stray incident(s) but was also alleged to be involved in multiple repeated incidents incidents of criminal acts. This cast serious aspersions on the integrity of the Officer. Considering gravity of charges against the Officer, it would not have been reasonable for the department to entrust/continue entrusting the Officer with sensitive assignment.
gnment. Persons who are facing such serious allegations do not inspire public confidence, which erode public faith in the administration. Thus, the Review Committee was of the considered view that the Officer should be compulsorily retired with all benefits benefits that were due to him. Learned counsel further stressed that in the present case the decision has been rightly taken in terms of the rule position and the decision has been right rightly imposed to compulsory retire the applicant under 56 (J). 3.6. Learned counsel further contended that the Review Committee noted that the applicant had been placed in the Agreed List for the year 2001, 2002-03, 2008-09, 09, 2011-12 and 2018-19.
19. He also contended that the Agreed List is a list of names of all those Gazetted Gazetted Officers, against whom some complaint in respect of honesty or integrity is pending. Doubts or suspicion are also taken into consideration while preparing this list. The list is prepared after consultation between the concerned department and CBI. The w work of the officer in the list is kept under watch by the department to prevent any frauds from happening. The lists are reviewed every year by the HOD and CBI.
Page 12 of 20 Item No. 40 (Court-V) (Court O.A. No.1007/2021 3.7. In terms of para 6.11 of the Vigilance Manual 2017, the relevant Office Memorandum (OM) for for the preparation of Agreed List is Ministry of Home Affairs' OM No. 130/1/66-ADV 130/1/66 ADV dated 05.05.1966. As per this OM, the officer is required to be kept under watch, and this goal cannot be achieved, if the same is disclosed to the officer. The same is prep prepared in consonance with Office Memorandum dated 28.10.1969 with subject Scheme for preparation, maintenance and custody of lists of public servants of gazette status of doubtful integrity. Learned counsel further highlighted the purpose of the list, which reads as under:
3. These lists are intended to keep the Ministries/Departments/Undertakings concerned informed about such officers of doubtful integrity to ensure that they are not posted to 'sensitive' assignments and that this fact is given due consideration tion when deciding administrative matters affecting the service of these officers. These lists would also help the Ministries to know about the officers whose work and conduct need both special attention and closer supervisory scrutiny.
3.8. Learned counsel coun further drew our attention to procedure for preparation of the lists and action of the lists which reads as under:
"Procedure Procedure for preparation of the lists:
4. (ⅰ) ⅰ) Vigilance Organisation of Ministries/Departments/Undertakings will prepare a list of public servants of Gazettted status against whom any disciplinary proceedings for a major penalty are in progress or who have been punished in disciplinary proceedings on a charge involving lack of integrity. A copy of these lists will be sent by the vigilance vigilance Organisation to the Central Bureau of Investigation every year in the last week of February.
(ii) As soon as an adverse report against an officer of the nature mentioned in the scheme is received, the Vigilance Officer should bring it to the notice oof the Secretary/Head of the Ministry/Department concerned immediately. A decision in regard to the inclusion of the name of such officer in the list should be taken as soon as possible.
(iii) The Central Bureau of Investigation will suggest addition or de deletion of names on the basis of information available with them and return the lists to Secretaries/Heads of Departments concerned.
(iv) If the Ministry/Department/Public Undertakings concerned does not agree to the inclusion or deletion of any particular name or names, it will be settled by mutual discussion. The decision of the Secretary/Head of the Ministry/Department would be final.
Page 13 of 20 Item No. 40 (Court-V) (Court O.A. No.1007/2021 Action of the Lists:
5. The purpose of maintenance of these lists is to also enable the Ministries/Departments to take such administrative action as is necessary and feasible. The following courses of administrative action are open:
open:-
(1) Withholding Certificate of integrity;
(2) Transfer from a 'sensitive' posts;
(3) Non-promotion, promotion, after consideration of his case, to a service, grade or post to which he is eligible for promotion.
(4) Compulsory retirement in the public interest (otherwise than as penalty) in accordance with the orders issued by the Government. This is now permissible on completion of the age of 50 with certain certain exceptions.
(5) Refusal of extension of service or re-employment re employment either under Government or in a Public Sector Undertakings.
(6) Non-sponsoring sponsoring of names for foreign assignment/deputation. (7) Refusal of permission for commercial re-employment re employment after retirement."
3.9. Learned counsel further submitted that this very aspect has been considered by the Co-ordinate Co ate Benches of this Tribunal. Learned counsel also relied upon the following decisions rendered by this Tribunal as well as the Hon'ble Apex Court:
Court
a) In O.A. No.2799 of 2019 titled Anup Kumar Srivastava vs. union of India & Ors.
b) In O.A. No.3302 of 2019 titled Vinod Kumar Vs. Govt. of NCT of Delhi.
c) Judgment titled Nisha Priya Bhatia vs. Union of India, (2020) 13 SCC 56.
d) Judgment titledRam
titled Murti Yadav vs. State of UP (2020) 1 SCC 801.
e) Judgment titled Arun Kumar Gupta vs. State of Jharkhand
Jharkhand, (2020)
13 SCC 355.
f) In O.A. No. 1835 of 2020 titled Ashok Kumar Agarwal vs. Union of
India & Ors.
g) Judgment in W.P. (C) No.11177 of 2020, titled Ashok Kumar
Agarwal vs. Union of India & Ors.
Page 14 of 20
Item No. 40 (Court-V)
(Court O.A. No.1007/2021
h) Judgment titled R.P. Kapur vs. Union of India
India, (1964) 5 SCR 431.
i) Judgment titled S. Ramachandra Raju vs. State of Orissa, 1994 Supp
(3) SCC 424.
3.10. Learned counsel for the respondents also relied upon the decision rendered by this Tribunal in O.A. No.372/2020 dated 26.11.2024 in the case of Amresh Jain vs. Union of India and Anr.
3.11. The original minutes of the Review Committee meeting has been produced uced by the learned counsel for the respondents for our perusal.
4. In rejoinder to the arguments put forth by the learned counsel for the respondents, learned counsel for the applicant submitted that the decision decision, as to whether, the applicant has been rightly rightly put in the Agreed List or not vest with ACC and not with the Review Committee in light of the Office Memorandum dated d 10.05.1974 and Office Memorandum dated 11.09.2015.
5. Heard learned counsel for the respective parties and perused the records of the case.
6. ANALYSIS :
6.1 The OM dated 10.05.1974 read with Office Memorandum dated 11.09.2015 spells out a procedure for the review of the cases of G Gazetted Officers holding posts initial appointment to which is referable to the Appointments Committee of the Cabinet. In the present case, the appointment is not by assent from Appointments Committee of the Cabinet moreover, in respect of ACC appointees Review committee may be headed by y the Secretary of the concerned Ministry/ Department as Cadre Controlling Authority.
Authority In the present case,, there is no challenge to Page 15 of 20 Item No. 40 (Court-V) O.A. No.1007/2021 composition and constitution to Review Committee. Nor it is the case of the applicant that he sought re-constitution of Committee at any point of time. 6.2. The Review Committee noted that the applicant had been placed in the Agreed List for the year 2001, 2002-03, 2008-09, 2011-12 and 2018-19. The Agreed List is a list of names of all those Gazetted Officers, against whom some complaint in respect of honesty or integrity is pending. Doubts or suspicion are also taken into consideration while preparing this list. The applicant has not even disputed the said fact(s) or for that matter controverted that he was never placed in the Agreed List for the year 2001, 2002-03, 2008-09, 2011-12 and 2018-19.
6.3. There is no doubt that rule of law is the very foundation of a well- governed society and the presence of bias or mala fides in the system of governance would strike at the very foundation of the values of a regulated social order. The law relating to mala fide exercise of power has been the subject matter of a catena of decisions [Refer: S. Pratap Singh v. State of Punjab; Jaichand Lal Sethia v. State of W.B24; J.D. Srivastava v. State of M.P And Others; and Express Newspapers Pvt. Ltd. And Others v. Union of India And Others. It has been repeatedly held that any exercise of power that exceeds the parameters prescribed by law or is motivated on account of extraneous or irrelevant factors or is driven by malicious intent or is on the face of it, so patently arbitrary that it cannot withstand judicial scrutiny, must be struck down. In the instant case, though the appellant has levelled allegations of bias and prejudice against some of the officers of the Page 16 of 20 Item No. 40 (Court-V) (Court O.A. No.1007/2021 respondents'' department, department , the said officer(s) have not been made a party in this O.A. Hence, these allegations cannot be looked into by this Court. 6.4 In Rajendra Singh Verma (D) Thr. Lrs vs Lt. Governor Of NCT Of Delhi & Anr. decided on 12 September, 2011(10 SCALE 315, (2011), it was observed as under :-
:
"88.Compulsory retirement from service is not considered to be a punishment. Under the relevant rules, an order of dismissal is a punishment laid on a Government servant when it is found that he has been guilty of misconduct or the like. It is penal in character character because it involves loss of pension which under the Rules have accrued in respect of the service already put in. An order of removal also stands on the same footing as an order of dismissal and involves the same consequences, the only difference between between them being that while a servant who is dismissed is not eligible for re-appointment, re appointment, one who is removed is. A compulsory retirement is neither dismissal nor removal and differs from both of them, in that it is not a form of punishment prescribed by th the rules and involves no penal consequences, in as much as the person retired is entitled to pension and other retiral benefits, proportionate to the period of service standing to his credit.
89. As explained by a Bench of three Hon'ble Judges of this CouCourt in State of U.P. vs. Shyam Lal Sharma AIR 1971 SC 2151, in ascertaining, whether the order of compulsory retirement is one of punishment, it has to be ascertained, whether in the order of compulsory retirement there was any element of charge or stigma oor imputation or any implication of misbehaviour or incapacity against the officer concerned. Secondly, the order of compulsory retirement will be indicative of punishment or penalty if the order will involve loss of benefits already earned. Thirdly, as order order of compulsory retirement on the completion of 25 years of service or an order of compulsory retirement made in the public interest to dispense with further service will not amount to an order for dismissal or removal as there is no element of punishment.
punishment. Fourthly, an order of compulsory retirement will not be held to be an order in the nature of punishment or penalty on the ground that there is possibility of loss of future prospects, namely, that the officer will not get his pay till he attains the age of superannuation, or will not get an enhanced pension for not being allowed to remain a few years in service and being compulsorily retired. So far as the present cases are concerned, this Court finds that there are no words in the orders of compulsory re retirement, which throw any stigma against the two appellants and the deceased officer.
Therefore, it is not necessary for this Court to make inquiry into the Government files to discover whether any remark amounting to stigma could be found in the files. The reason is that it is the order of compulsory retirement, which alone is for examination. If the order itself does not contain any imputation or charge against the two appellants and the deceased officer, the fact that considerations of misconduct or misbehaviour misbehaviour weighed with the High Court in coming to its conclusion to retire them compulsorily does not amount to any imputation or charge against them.
It is not established from the order of compulsory retirement itself that the charge or imputation against against the appellants was made a condition for exercise of the power. Therefore, the orders of retirement cannot be considered to be one for dismissal or removal in the nature of penalty or punishment."Page 17 of 20
Item No. 40 (Court-V) (Court O.A. No.1007/2021 6.5 We observe that independent assessment for compulsory retirement under 56 (j) can be undertaken under the relevant Service Rules at the earlier stages. At this juncture, juncture we also draw raw a reference to para 119, 121 and 136 of Rajendra Singh Verma (D) (Supra) "119.The argument that material was not supplied on the basis of which "`C' Doubtful Integrity" was awarded to the appellants and, therefore, the order of compulsory retirement is liable to be set aside has no substance. Normally and contextually word `material' means substance, matter, stuff, something, materiality, medium, data, facts, information, figures, notes etc. When this Court is examining as to whether there was any `material' before the High Court on the basis of which adverse remarks were recorded in the confidential reports of the appellants, this `material' relates to substance, matter, data, information etc. While considering the case of a judicial officer it is not necessary to limit the `material' only to written complaints or `tangible' evidence pointing finger aat the integrity of the judicial officer. Such an evidence may not be forthcoming in such cases.
121.As observed by this Court in High Court of PunjabJ& Haryana through R.G. Vs. Ishwar Chand Jain and Another, (1999) 4 SCC 579, at times, the Full Court has to act on the collective wisdom of all the Judges and if the general reputation of an employee is not good, though there may not be any tangible material against him, he may be given compulsory retirement in public interest and judicial review of such order order is permissible only on limited grounds. The reputation of being corrupt would gather thick and unchaseable clouds around the conduct of an officer and gain notoriety much faster than the smoke. Sometimes there may not be concrete or material evidence to make it part of the record. It would, therefore, be impracticable for the reporting officer or the competent controlling officer writing the confidential report to give specific instances of shortfalls, supported by evidence.
136.On a careful consideration consideration of the entire material, it must be held that the evaluation made by the Committee/Full Court, forming their unanimous opinion, is neither so arbitrary nor capricious nor can be said to be so irrational, so as to shock the conscience of this Court to warrant warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions, a vast range of multiple factors play a vital and important role and no one factor should be allowed to be blown out of proportion either to decry or dei deify an issue to be resolved or claims sought to be considered or asserted. In the very nature of things, it would be difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary ary case when the Court is convinced that some real injustice, which ought not to have taken place, has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Committee/Full Court. Viewed thus, and considered in the background of the factual details and materials on record, there is absolutely no Page 18 of 20 Item No. 40 (Court-V) (Court O.A. No.1007/2021 need or justification for this Court to interfere with the impugned proceedings. Therefore, the three appeals fail and are dismissed."
dismissed."
6.6 Thus, in the present case as well the applicant's name figured in the Agreed List for the year 2001, 2002-03, 2002 03, 2008 2008-09, 2011-12 and 2018-19 which showed that his name continued to remain for quite some time, which was also reviewed from time to time and remained unconverted or uncontested.
6.7 We may say that doctrine of "Preponderance of Probability" applies with equal force in matters concerning compulsory retir retirement under Section 56 (j). Itt is crystal clear that the judgments relied upon by the learned counsel for the applicant have no applicability in the facts of the present case and as such, do not help the case of the applicant. 6.8 The views expressed herein are purely to the extent of the decision qua invocation of provisions of FR 56(J) without prejudice to the rights and contentions of either parties in any pending departmental proceedings.
7. CONCLUSION :
7.1 In view of the above analysis, we are of the view that the decision taken by the respondents in compulsorily retiring the applicant under FR 56(j) does not suffer from any legal infirmity; therefore, it does not call for any interference. Accordingly, the present O.A. is dismissed being devoid of merit.
7.2. The Court officer is directed to return the original minutes of the Review Committee meeting to the learned counsel for the respondents after obtaining a proper receipt as acknowledgement.
ement.
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Item No. 40 (Court-V) O.A. No.1007/2021 7.3. Pending M.A.s, if any, shall also stand disposed of. No costs.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/sb/
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