Central Administrative Tribunal - Delhi
Dr Anup Kumar Srivastava vs M/O Finance on 16 January, 2023
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Item No.38 OA No. 2799/2019
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 2799/2019
Reserved on : 07.12.2022
Pronounced on : 16.01.2023
Hon'ble Mr. Justice Ranjit More, Chairman
Hon'ble Mr. Mohd. Jamshed, Member (A)
Dr. Anup Kumar Srivastava
S/o Late Sh. V.S. Srivastava
Aged about 60 years
Last held Group 'A' Post as
Ex. Principal ADG (Audit), CBIC
R/o D2/137, Kaka Nagar
New Delhi-110003. .. Applicant
(Applicant in person)
Versus
1. Union of India
Through its Secretary
Government of India
Ministry of Finance
North Block, New Delhi-110001
2. Central Board of Indirect Tax & Customs
Department of Revenue
Ministry of Finance, GOI
North Block, New Delhi-110001
3. Dr. Ajay Bhushan Pandey
Revenue Secretary
Department of Revenue
Ministry of Finance, GOI
North Block, New Delhi - 110001
4. Shri Pranab Kumar Das
Chairman, CBIC
Department of Revenue
Ministry of Finance, GOl
North Block, New Delhi-110001. .. Respondents
(By Advocate : Mr. Ravi Prakash with Mr. Varun Agarwal)
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Item No.38 OA No. 2799/2019
ORDER
Mr. Mohd. Jamshed, Member(A) The applicant has filed the present O.A. challenging the impugned orders dated 28.08.2019 and 18.06.2019 by which he has been compulsorily retired under clause (j) of Rule 56 of the Fundamental Rules. It is submitted that the applicant joined the Indian Revenue Service (Customs & Central Excise), Group „A‟, in 1984 and was subsequently promoted to the post of Commissioner of Customs and Central Excise on 25.10.2004. Thereafter he was promoted as Principal Commissioner vide order dated 22.10.2018 w.e.f. 11.04.2015. He was under consideration for further promotion to the post of Chief Commissioner (HAG Plus grade) for which necessary clearances etc. had already been obtained. However, vide Order No. 80/2019 dated 18.06.2019, he was retired from service under FR 56(j). He made a representation against this impugned order on 21.06.2019. The Representation Committee vide order dated 28.08.2019 opined that there is no need or reason to interfere with the decision of appropriate authority to prematurely retire the applicant in public interest. The observations of the Representation Committee were accepted by the Competent Authority.
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2. It is the contention of the applicant that he has had an outstanding academic and professional record and after having joined IRS in 1984, he held various important positions and undertook major work related initiatives, which resulted in grant of service awards and appreciations. His Annual Performance Appraisal Reports (APARs) have also been rated „outstanding‟. It is also submitted that he was considered for promotion as Principal Commissioner vide order dated 22.10.2018 by the ACC on the basis of his performance and all necessary clearances and, therefore, the action on the part of the respondents for his retirement under FR 56(j) is illegal and also mala fide. In this regard, he has stated that he had highlighted a number of irregularities to the respondents in the working of the Department from time to time as the elected President of the IRS (Indirect Taxes and Customs) Officers Association.
3. The applicant has also alleged that he was deliberately harmed with a mala fide intention on the part of the respondent Nos. 3 and 4. It is also his contention that although there have been certain disciplinary proceedings and cases registered against him by the CBI etc., all of those were closed without any adverse action against him. He has claimed that he has been getting outstanding APARs and no 4 Item No.38 OA No. 2799/2019 comment has been made against his integrity in those APARs. He has also been granted all due promotions including as Principal Commissioner approved by the ACC, vide order dated 22.10.2018. The applicant also submits that the action by the respondents in compulsorily retiring him under FR 56(j) is illegal and not in conformity with the rules, as this exercise is to be undertaken on completion of 50 years of age annually and, in his case, this has been done much later, when he attained the age of 59 years and was due for his next promotion. In support of his contention, he has also relied upon various circulars and guidelines on APARs, the DoP&T circular dated 28.08.2020 regarding FR 56(j), CVC instructions and the judgments of the Hon‟ble Apex Court in State of Gujarat vs. U.M. Patel, 2001 (3) SCC 314; Union of India vs. Col. J.N. Sinha, 1571 SCR (1) 791; State of Gujarat vs. Suryakant Chunnilal Shah, (1999) 1 SCC 529; Baikuntha Nath Das & Anr. vs. Chief District Medical Officer Saripada and Anr., (1992) 2 SCC 299.
4. By filing this O.A., the applicant is seeking the following relief(s):
"(a) To call for the records and set aside the impugned order dated 28.8.2019 (Annexure A-1) and dated 18.6.2019 (Annexure A-2) and direct the respondents to immediately reinstate the applicant in service with all 5 Item No.38 OA No. 2799/2019 consequential benefits including continuity of service, seniority, pay and allowances;
(b) To process the applications of Member, CBIC, Member, CESTAT and Member, National Authority for Anti-Profiteering as per rule giving equal opportunity to the Applicant as given to others in accordance with law."
The applicant is primarily seeking quashing and setting aside of the impugned orders dated 28.08.2019 and 18.06.2019 and directions to reinstate the applicant in service, with all consequential benefits.
5. Respondents have filed their counter affidavit opposing the O.A. It is submitted that the Review Committee had considered the entire service record of the applicant including various charge sheets and recommended that he be compulsorily retired under FR 56(j). The recommendations were accepted by the Competent Authority. The Review Committee had considered various allegations and charges against the applicant including registration of cases by CBI, his suspension, arrest, departmental proceedings and a number of complaints. In terms of the FR provisions, the representation submitted by the applicant has also been considered and rejected by the Competent Authority vide order dated 28.08.2019. In this order also, Committee‟s observations have been given in detail explaining the action of 6 Item No.38 OA No. 2799/2019 compulsory retirement under FR 56(j) against the applicant. In support of their averments, the respondents have also relied upon the following judgments:
(i) Nisha Priya Bhatia vs. Union of India, (2020) 13 SCC 56
(ii) Ram Murti Yadav vs. State of Uttar Pradesh and Others, (2020) 1 SCC 801
(iii) Judgment dated 18.12.2020 passed in O.A. No. 1835/2020 Ashok Kumar Agarwal vs. Union of India & Ors. (Affirmed by Hon‟ble High Court of Delhi in W.P.(C) No. 11177/2020 Ashok Kumar Agarwal vs. Union of India)
(iv) Ashok Kumar Aggarwal vs. Union of India, 2021 SCC OnLine Del 4453
(v) S. Ramachandra Raju vs. State of Orissa, 1994 Supp (3) SCC 424
(vi) Vinod Kumar vs. Govt. of NCT of Delhi and Ors., MANU/CA/0051/2020
(vii) Judgment dated 19.12.2020 passed in O.A. No. 703/2020 Pramod Kumar Bajaj.
6. The primary contention of the respondents is that in case of FR 56(j), the Hon‟ble Supreme Court has already held that the scope of judicial review is very limited and is permissible only on limited grounds of non-application of mind or mala fides. The whole process is entirely based on the 7 Item No.38 OA No. 2799/2019 subjective satisfaction of the Appointing Authority and for arriving at such a decision, the fact that the applicant was not held responsible or punished in any of the disciplinary or criminal proceedings shall not come in the way. Even promotion during the service career may not impact the decision of compulsory retirement under FR 56(j). Such an action may be taken at any time after completion of 50 years of age. The respondents have relied upon a number of judgments of the Hon‟ble Apex Court and also by the Hon‟ble High Court and this Tribunal in support of their arguments. The respondents have also strongly refuted the claim of the applicant of mala fide and bias in any way.
7. It is the contention of the respondents that the action taken against the applicant for compulsory retirement under FR 56(j) is neither a stigma nor a punishment and this being a well considered decision without any mala fides, there is no merit in the petition of the applicant.
8. Heard the applicant in person and Mr. Ravi Prakash assisted by Mr. Varun Agarwal, learned counsel appearing for the respondents at length in a number of sittings; perused the pleadings on record and the judgments relied upon by both sides.
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9. The applicant joined as IRS (C&CE) as Group „A‟ officer on 19.12.1984. He was subsequently promoted to various positions, finally as Principal Commissioner vide order dated 22.10.2018 w.e.f. 11.04.2015 notionally, subject to the outcome of WP(C) No. 1399/2017 filed by the respondents before the Hon‟ble Guwahati High Court. It is the contention of the applicant that after having been promoted as Principal Commissioner, his case was considered for promotion to the post of Chief Commissioner. The proposal was sent to the UPSC after Vigilance clearance and APARs gradings etc., with the approval of the Central Board of Indirect Taxes and Customs on 03.12.2018. However, this was delayed on various grounds and the DPC could not take place for his promotion to the post of Chief Commissioner. In the meanwhile, order No.80/2019 dated 18.06.2019 was issued compulsorily retiring him under FR 56(j). The order is extracted below:
"F.No. C-50/48/2019-Ad II Government of India Ministry of Finance Department of Revenue Central Board of Indirect Taxes & Customs 47-B, North Block, New Delhi Dated 18th June, 2019 ORDER NO. 80/2019 Whereas the President is of the opinion that it is in the public interest so to do so;
NOW THEREFORE in exercise of the powers conferred 9 Item No.38 OA No. 2799/2019 by clause (j) of rule 56 of the Fundamental Rules, the President hereby retires Shri Anup Kumar Srivastava (D.O.B. 14.05.1960), Principal Commissioner, with immediate effect, he having already attained the age of 50 years. The President also directs that Shri Anup Kumar Srivastava shall be paid a sum equivalent to the amount of his pay plus allowances for a period of three months calculated at the same rate at which he was drawing them immediately before his retirement.
-sd/-
(Kunwar Balwant Rao) Under Secretary to the Government of India To Sh Anup Kumar Srivastava, IRS (C&CE: 420/1984) Pr. ADG, Delhi Zonal Unit DG(Audit), New Delhi"
The above order has been passed by the Competent Authority after considering the Review Committee‟s recommendations for compulsory retirement of the applicant. The Review Committee had taken into consideration various cases against the applicant as stated in the relevant paras of the affidavit filed by the respondents. The Review Committee‟s minutes as extracted are as under:
"2. That the review committee considered gravity of charges and allegations made against the officer for a major part of his career.
i. The CBI registered a case against the Applicant in 1996 vide RC 56(A)/96-DLI, alleging that he had entered into a criminal conspiracy with the object of illegal. A charge sheet was filed against various persons including The Applicant on 15.12.1999 for offences under Section 120-B, 109 IPC read with Section 9 of the Prevention of Corruption Act, 1988. The Applicant was placed under suspension on 12.12.2000 which was revoked on 02.01.2002. Hon'ble Special Judge, CBI vide order dated 26.08.2017 acquitted him of all the charges. The matter relating to appeal against the above has been allowed to rest by the CBI.10 Item No.38 OA No. 2799/2019
ii. The CBI booked another case under RC AC1 2012 A0001 dated 02.01.2012 against the Applicant for demanding and accepting bribe from an importer to cover up a case of duty evasion. He was arrested on 13.01.2012, which resulted in his suspension. He was released on bail on 09.05.2012. The Suspension was revoked on 24.12.2013. CBI vide report dated 22.02.2012 sought sanction for prosecution. The sanction was granted after obtaining concurrence from CVC communicated vide OM No. 012/CEX/002 dated 07.03.2012 and charge sheet had been filed by the CBI on 12/03/2012. The order of the trial court dated 08.11.2012 framing charges against The Applicant was quashed by the High Court of Delhi on 21.11.2013. The appeal filed by the CBI against the order of Hon'ble High Court was dismissed by the Hon'ble Supreme Court vide its order dated 04.08.2017.
iii. The Committee also noted that CBI had registered a Preliminary Enquiry No AC-1 2012A0004 on 31.08.2012 Registration Report in 2012 against the Applicant alleging acquisition and disposal of a number of properties in his name and names of his family members during service period and some of which were not intimated to the Department in terms of relevant rules. The PE was closed by the CBI on 05/03/2012 as on enquiry no prima-facie evidence had come on record to substantiate the allegations.
iv. The Committee further noted a complaint filed by UP Mentha Manufacturers‟ Association dated 25.08.2009 against the Applicant then Commissioner.
v. The Committee noted two more complaints against The Applicant.
a. One complaint dated NIL (received in DGoV on 04/12/2009) filed by a "Harassed Businessmen Group" alleged that wife of the Applicant had done a transaction of Rs.2.5 crore in Era Construction which was supported with a copy of statement dated 01.02.2006 of the Stockbroker M/s Trendz deals. The complainant also alleged improprieties in the case of one M/s MAV Metal falling under Meerut-II; acceptance of bribe of Rs 30 Lakhs from M/s Rana Sugar which also helped The Applicant in getting his transfer stayed; demand and acceptance of bribe of Rs One Crore from Mentha Manufacturers and continuance of harassment despite payment.
b. Second complaint dated 06.03.2011 was filed by one 'Friends of India‟ wherein the complainant questioned holding of a sensitive charge by the 11 Item No.38 OA No. 2799/2019 Applicant when grave charges in RC 56(A)96- DLI (mentioned above) were pending against him and Delhi High Court had dismissed his petition to quash the charges. The complainant also questioned removal of his name from Agreed list when grave charges were pending against him. The Committee noted that both the complaints made a mention regarding the penalty of Rs.20 lakh imposed on The Applicant for unauthorized occupancy of Govt accommodation and non-filing of charge sheet against Anup Kumar Srivastava despite imposition of penalty of Rs 20 Lakhs by the Estate Officer of Delhi-I Commissionerate for unauthorised occupation of Govt ccommodation. The Committee noted that the allegations in these complaints (other than those relating to unauthorized occupation of Govt accommodation and demand of penal rent amounting to Rs 21,62,165/- and interest thereon) being unsubstantiated, were closed.
vi. The Committee noted one more complaint dated 05.12.2010 filed by one Shri Jaivir who was an informer in the case of duty evasion by M/s Indian Steel Corporation, Delhi. The complainant alleged that the Applicant had taken bribe of Rs 5 Crores- in the case of raid against M/s Indian Steel Corporation for reducing the duty evasion to Rs 3 Crore. The Committee noted that the complaint was investigated by North Zonal Unit of DGoV and as no-conclusive evidence emerged during the investigation, the matter was closed with the concurrence of CVC.
vii. The Committee further noted that DG (Vig.) received another complaint dated 02.12.2011 made by one Sh. R.B. Singh, the copies of which were endorsed to various other agencies. The complaint was closed on 29.09.2017 with the approval of Chairman, CBIC.
viii. The Committee noted two more complaints dated 29.07.2016 and 01.08.2016 filed by Sh. Anil Kumar Goyal & Sh. Vinod Raina respectively. While Sh. Anil Kumar Goyal alleged cheating by The Applicant and his wife while selling a shop in Gautambudh Nagar, Sh. Vinod Raina alleged commercial activities undertaken in property of the Applicant. Since both the properties belonged to his wife and the matter between two private properties, both the complaints were closed after due process.
ix. The Committee perused the documents on record relating to issue of unauthorized occupation of the applicant and demand of penal rent and interest thereon and noted that after his transfer from Delhi to Rajkot & thereafter to Meerut in 2005, despite 12 Item No.38 OA No. 2799/2019 the officer continued to occupy the Govt accommodation at Delhi despite cancellation of allotment by Estate Officer vide order dated 03.07.2006 and uon of his request for allowing him accommodation at Delhi by the Board vide its letter dated 07.08.2006.
x. The CBlC issued a charge sheet on 14.04.2016 for wilful defiance of a lawful order passed-by Estate Officer and wilful insubordination and disobedience of Board's order. The Committee noted that the charge sheet issued to the Applicant had been quashed by the Ld. CAT. Guwahati Bench and an appeal filed by the department against the order has been dismissed by the Hon'ble High Court at Guwahati. However, the order of Estate officer relating to payment of penal rent was initially upheld by the Ld. District & Sessions Judge, Saket for part period. Later on, the Department filed a Review Application. The Ld. District & Sessions Judge, Saket in its review order upheld the demand for the full period. The Applicant has filed an appeal in Delhi High Court against the first order which stayed the demand for earlier part period.
xi. The Applicant was first placed in Agreed List for the year 1993-94. Thereafter, in various different years, he was placed in Agreed List in years 2011-12, 2012- 13, 2014-15, 2015-16 and also in ODI List for the years 2004-05 to 2007-08 and 2012-13 to 2016-17. Thus, in his service career of 35 years, there are many instances when officer was placed in Agreed List and ODI List for his doubtful conduct. As such the impugned order for compulsory retiring of officer under FR 56(j) is proper and passed in public interest."
10. From the above, it is evident that a number of cases have been registered by the CBI and Vigilance against the applicant beginning from the year 2000 till 2016-17. The applicant was also put on the Agreed List beginning from 1993-94 onwards till 2016-17 for a number of years and also in the ODI (Officers of Doubtful Integrity) List for various years. The Review Committee took note of these charges, allegations, 13 Item No.38 OA No. 2799/2019 cases, suspension of the applicant, his arrest and the very fact that for a number of years, he was put on the Agreed List and ODI List; and recommended his case for compulsory retirement. The representation was made against the impugned order dated 18.06.2019 by the applicant, which was considered by the Representation Committee. The Representation Committee considered the impugned order dated 18.06.2019, minutes of the Review Committee and perused the entire service record of the officer and other documents. The Representation Committee after deliberations recorded their views justifying the action taken against the applicant under FR 56(j) as under:
"5.1.2 The Committee considered the representation of the Officer, and noted that key issue raised in his representation is that he has less than one year of service left for retirement, and he has outstanding track record, and that he was given promotion only seven months back.
The Committee found that the Officer has been compulsorily retired by Review Committee on the ground of doubtful integrity in public interest, and not on the ground of ineffectiveness. The Committee thus further noted that the Government has absolute right to retire any officer under FR 56(j) on the ground of doubtful integrity in public interest and in such cases the service record or the period left for retirement on superannuation is immaterial. The Committee also noted that even though CBI cases against the officer were quashed/closed, this had already been considered by the Review Committee.
5.1.3 The Committee observed that:
(a) in terms of Para 13 of DoPT OM dated 27.06.1986 no employee should ordinarily be retired on ground of ineffectiveness, if he would be retiring on superannuation within a period of one year. However, it further clarifies that this instruction is relevant only when an employee is proposed to be retired on the ground of ineffectiveness, but not on the ground of doubtful integrity. The same provision has been reiterated in DoPT OM dated 21.03.2014, wherein 14 Item No.38 OA No. 2799/2019 para 5(a) clearly states that Government employee whose integrity is doubtful will be retired (without exceptions). Para 5(d) of DoPT OM dated 21.03.2014 makes it evident that an employee otherwise retiring within one year on superannuation may also be retired prematurely under rule 56(j) on the ground of doubtful integrity. Similarly the clarification given in para 5(c) of above OM also makes it evident by mentioning that consideration is ordinarily to be confined to the preceding 5 years or to the period in higher post, in case of promotion within a period of 5 years, is only when retirement is sought to be made on account of ineffectiveness There is no such stipulation, however where the employee is to be retired on grounds of doubtful integrity.
The case of the Officer, being a case of doubtful integrity, is covered under above DoPT OMs. The Clause 5(c) and 5(d) of the OM dated 21.03.2014 quoted by Sh. Srivastava are applicable in cases where the employee has been prematurely retired on the ground of ineffectiveness. The major facts that have been brought by the officer in his representation has already been considered by the Review Committee.
(b) The Review Committee took into consideration the entire service records of the officer which includes Charge Sheets issued to him etc. and reached its conclusion to retire the officer. The Review Committee further noted that 'outstanding service records/ considering entries in APARs does not apply, if the compelling reasons to retire under rule 56(j) rest on integrity, which is the case here.
(c) The Review Committee had laid out detailed reasons and grounds on which decisions had been taken in public interest. The review Committee had referred several Hon'ble Apex Court judgements also in this context. The records suggest that the decision has been taken in reasoned manner and do not suggest prejudice or arbitrariness.
(d) Keeping in view of above observation in each case, this Committee does not find any need or reason to interfere in the decision of appropriate authority to prematurely retire Shri Anup Kumar Srivastava, in public interest. Considering overall facts and circumstances involved in the case, this committee is of the view that action taken under 56(j) is fully justified."
These have also been communicated to the applicant vide order dated 28.08.2019.
11. It is clearly stated by the Representation Committee that the key issue raised by the applicant, which are also 15 Item No.38 OA No. 2799/2019 raised during the hearing of the present O.A., are primarily that he has less than one year service left before retirement and has had an outstanding career, getting regular promotions. This fact is also clearly indicated by the Review Committee which recommended the officer for compulsory retirement on the ground of doubtful integrity in public interest and not on the ground of ineffectiveness. The closure of various cases by the CBI etc. were also taken note of. Having considered the entire service record, a decision has been taken in public interest and the Representation Committee did not find any need or reason to interfere with the decision of the Competent Authority to prematurely retire the applicant in public interest under FR 56(j). The above recommendations of the Representation Committee were accepted by the Competent Authority and his representation was rejected.
12. It will be necessary to examine the case law in this regard. As already stated earlier, the Hon‟ble Supreme Court has held that the scope of judicial review in cases of compulsory retirement by the Courts and Tribunals is limited, primarily to those cases where such a decision has been taken with non-application of mind or mala fide. This aspect is covered in Nisha Priya Bhatia vs. Union of India, (2020) 16 Item No.38 OA No. 2799/2019 13 SCC 56 and Ram Murty Yadav vs. State of Uttar Pradesh and Another, (2020) 1 SCC 801. The relevant paras of the judgments read as under:
(i) Nisha Priya Bhatia vs. Union of India "It is settled law that the scope of judicial review is very limited in cases of compulsory retirement and is permissible on the limited grounds such as non- application of mind or mala fides. Regard can be had to Pyare Mohan Lal vs. State of Jharkhand and Others."
(ii) Ram Murty Yadav vs. State of Uttar Pradesh & Anr.
"6. The service records of the appellant have been examined by the Screening Committee, the Full Court as also by the Division Bench of the High Court. The scope for judicial review of an order of compulsory retirement based on the subjective satisfaction of the employer is extremely narrow and restricted. Only if it is found to be based on arbitrary or capricious grounds, vitiated by mala fides, overlooks relevant materials, could there be limited scope for interference. The court, in judicial review, cannot sit in judgment over the same as an Appellate Authority. Principles of natural justice have no application in a case of compulsory retirement."
13. In terms of the settled law by the Hon‟ble Apex Court in the above judgments, the role of Tribunal is limited to see whether the decision taken by the respondents in compulsorily retiring the applicant suffers from non- application of mind or mala fides. Before coming to that, we would also like to note the contentions of the applicant. During the hearing, the applicant in person vehemently argued that his averments have been accepted by the 17 Item No.38 OA No. 2799/2019 respondents that in the cases registered by the CBI against him, finally no action was taken and the cases were closed by the CBI itself or with the orders of the Hon‟ble Courts. The complaints that were registered and investigated were also found to be without any substance and no further action was taken in those complaints. In few other cases quoted by the Review Committee, the complaints were closed with the concurrence of the CVC. As far as the name being included in the Agreed List and the list of Officers of Doubtful Integrity is concerned, he was unaware of such an action taken by the respondents.
14. We have also heard the respondents, who have opposed these averments. As far as the first aspect about the favourable decision in disciplinary or criminal proceedings against the applicant or no action in various allegations is concerned, it is well settled law that such an action may not necessarily impact the decision for compulsory retirement. The Hon‟ble Supreme Court in S. Ramachandra Raju vs. State of Orissa, 1994 Supp (3) SCC 424 has held as under:
"In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace in public service and injurious to public interest. ............. Therefore, the entire service record more particular the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a government officer."18 Item No.38 OA No. 2799/2019
In Ashok Kumar Aggarwal vs. Union of India and Another in WP(C) No. 11177/2020 vide judgment dated 22.09.2021, the Hon‟ble Delhi High Court held as under:
"32. Even if there are decisions in the matter of suspension, departmental inquiries any challenge of grant of sanction for prosecution in favour of the Petitioner, that does not mean that the Petitioner cannot be compulsorily retired by the Respondents. The observations made in the orders while deciding the matter initiated by the Petitioner is one thing whereas, the order of compulsory retirement which is passed on the basis of entire service record of the Petitioner and the decision taken by Review Committee, is altogether another thing. If any employee of the Union of India has succeeded in litigation(s) that does not mean that looking to the overall service record of the Petitioner, after certain age as per rules, he cannot be retired by the Union of India. It ought to be kept in mind that compulsory retirement is a subjective satisfaction which has been formed on the basis of the entire service record. It is not a punishment. Compulsory retirement may have some adverse effect upon the employee but if the Review Committee is of the opinion that in the interest of public his services should be brought to an end by compulsory retirement after prescribed age on the basis of the entire record of service, such an employee has no right to continue into the services after a prescribed age, as per rules.
33. Rule 56(j) of Fundamental Rules is an extension of "Doctrine of Pleasure", If the employer- Union of India is of the opinion that no useful purpose will be served by continuing an employee into the services of the Union of India, in the public interest such an employee can be made compulsorily retired."
It is thus obvious that it is an extension of the „Doctrine of Pleasure‟‟ of the Appointing Authority and employee can be compulsorily retired in public interest. Similarly, the entire service record has to be taken into consideration for the subjective satisfaction and not merely the disciplinary or 19 Item No.38 OA No. 2799/2019 criminal cases, which may not have resulted in final adverse action against the applicant.
15. As far as the contention of the applicant regarding grant of promotion to him is concerned, this also falls in the same category as above and the fact that certain promotions have been granted for which clearances have been obtained, does not necessarily prohibit the Competent Authority to take an affirmative decision under FR 56(j) against an employee. In the case of Ashok Kumar Aggarwal vs. Union of India & Anr. (supra), it has been held that even if a promotion has been granted, the action under FR 56(j) can be taken, which reads as under:
"37. In view of the aforesaid decision even if promotion has been granted to him, still compulsory retirement can be granted by Union of India under Rule 56(j) of Fundamental Rules as under the said rule the entire service record of the employee is to be seen and if the Review Committee is of the opinion that in the interest of public looking to overall service record, the employee requires to be retired, there is no right vested in the employee to continue in the employment after a prescribed age under the Rules."
16. The applicant has also further relied on the DoP&T‟s O.M. dated 28.08.2020 in support of his argument that the review under FR 56(j) has to follow a time schedule and the exercise has to be conducted every year for those Government servants who are due to attain the age of 50 years or have 20 Item No.38 OA No. 2799/2019 completed 30 years of service and, therefore, in his case this review should have been undertaken when he was 50 years of age and not one year prior to his retirement, without any substantive reason; and the impugned order is thus an illegal order. This aspect has also been taken note of by the Hon‟ble Delhi High Court in Ashok Kumar Aggarwal vs. Union of India and Anr. (supra), wherein it is clearly held that there is no requirement to take action under FR 56 (j) immediately after attaining the age of 50 years and that such an action can be taken at any time after 50 years.
17. This further brings us to the aspect of the name of an employee featuring in the Agreed List and the ODI List and whether these can also be considered for arriving at a decision to compulsorily retire a person from service. As far as the list of public servants of Gazetted status of doubtful integrity is concerned, it has the names of those officers, who after inquiry or during the course of inquiry have found to be lacking in integrity. There are various categories including the category of officers against whom proceedings for a major penalty or a court trial are in progress for alleged acts involving lack of integrity or moral turpitude. It is also in the Scheme that those officers who were prosecuted but acquitted on technical grounds and in whose cases on the basis of 21 Item No.38 OA No. 2799/2019 evidence during the trial, there remains the reasonable suspicion against their integrity, would feature in these lists. These lists are intended to keep the Ministries/Departments 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 while deciding administrative matters affecting the service of these officers. It is also the purpose of these lists that these would also help the Ministries/Departments to know about the officers whose work and conduct need both, special attention and closer supervision. Similarly, those put on the Agreed List are also watched for their performance. The applicant was placed in Agreed List in 1993-94 and thereafter again in 2011-12, 2012- 13, 2014-15 and 2015-16. He was also put on the ODI List for the years 2004-05 to 2007-08 and 2012-13 to 2016-17.
18. This Tribunal in O.A. No. 3302/2019 (Vinod Kumar vs. Govt. of NCT of Delhi) dated 21.01.2020 opined on the ODI. The relevant paras are quoted below:
"18. In Ranbir Singh‟s case (supra), the only fact that weighed with the Review Committee was the pendency of a criminal case. The High Court took the view that pendency of a criminal case cannot constitute a basis for invocation of FR56(j). It has already been mentioned that the fact that weighed with the Review Committee in the case of the applicant herein is the inclusion of his name in the Agreed List.
19. In Mohammad Shafi Shah's case (supra), the compulsory retirement of the employee therein was on 22 Item No.38 OA No. 2799/2019 the allegation of lack of integrity and the only basis was a pending FIR. After referring to the relevant precedents, the Hon‟ble High Court viewed that FIR by itself does not constitute the basis. It has already been mentioned that the name of the applicant was included in the Agreed List and the applicant did not challenge such inclusion. When FR56(j) is invoked on the allegation of lack on integrity, the scrutiny will be relatively less.
20. Recently, in Adesh Kumar‟s case (supra), the Calcutta Bench of this Tribunal dealt with the identical case. The name of the applicant therein figured in the doubtful integrity list and it was found to be an adequate ground for invoking FR 56(j)."
19. Lastly, this brings us to the allegation of mala fide, stated and argued by the applicant. The applicant alleged that as he was the President of IRS (Indirect Taxes and Customs) Officers Association, therefore, it was also his duty to highlight irregularities etc. in working matters to the notice of the Competent Authority, specifically the Chairman of CBIC and the Revenue Secretary. He did highlight some of the working deficiencies and irregularities, which came to his notice, for necessary action to respondent Nos. 3 and 4 and this, according to him, resulted in the respondents concerned to take action against him. He also alleged that the proposal for his promotion to Chief Commissioner, which had already been processed and was with the UPSC, was recalled with mala fide intention and subsequently the order under FR 56(j) for his compulsory retirement was issued. The respondents have opposed the contention of the applicant. 23 Item No.38 OA No. 2799/2019
20. We have observed that the exercise of compulsorily retiring officers is not a one-time activity or specifically when the applicant has been considered for compulsory retirement under FR 56(j). It was observed that this is an ongoing process and even in the past, review has been conducted in case of many officers in terms of the DoP&T O.M. dated 11.09.2015 for compulsory retirement under FR 56(j). The applicant‟s case was also one of the many cases and the review was conducted in June, 2019. We have observed that the applicant had not been able to put forward any specific instance of mala fide intention or action by the respondent No.3 or 4. Only the instance of recalling the DPC file for approval does not indicate any mala fide. As far as highlighting the irregularities in the departmental functioning is concerned, that is part of the normal Government working and there is no reason as to why for highlighting any irregularities or departmental matters, the officer would be subject to any action, more so, when the applicant was the President of the IRS Officers Association. The respondent Nos. 3 and 4 are also not directly concerned with the action of FR 56(j), which is passed by a Presidential order. It is also brought to our notice that the Representation Committee consists of Members who are other than those of the Review Committee and, therefore, the claim 24 Item No.38 OA No. 2799/2019 made by the applicant for mala fide or personal bias is not tenable.
21. We have looked into the fundamental principle governing FR 56(j) and the applicability of subjective satisfaction. It is worthwhile quoting some of the landmark judgments which have dealt with the aspects of principles of natural justice, subjective satisfaction and other aspects of applicability of FR 56(j).
(a) In Baikuntha Nath Das v. Chief District Medical Officer, the principles were summed up as under:
"(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether.
While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or
(b) that it is based on no evidence or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be perverse order.
(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks 25 Item No.38 OA No. 2799/2019 lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference."
(b) In Union of India vs. Col. J.N. Sinha, 1970 (2) SCC 458, their Lordships held as under:
"9. Now coming to the express words of Fundamental Rule 56(j), it says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule.' one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by the government on the ground of mala fide. But that ground has failed. The High Court did not accept that plea. The same was not pressed before us. The impugned order was not attacked on the ground that the required opinion was not formed or that the opinion formed was an arbitrary one. One of the conditions of the 1st respondent's service is that the government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no civil consequences. The aforementioned rule 56(j) is not intended for taking any penal action against the government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Art. - 310 of the Constitution. Various considerations may weigh with, the appropriate authority while exercising the power conferred under the rule. In some cases, the government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that 26 Item No.38 OA No. 2799/2019 a person of undoubted ability and integrity should be there. ............................................It is in public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual government servant and the interests of the public. 'While a minimum service is guaranteed to the government servant, the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest."
(c) In Ashok Kumar Aggarwal vs. Union of India and Anr., the Hon‟ble Delhi High Court held as under:
"28. We are not in agreement with this contention canvassed by the learned Senior Counsel for the reason that compulsory retirement is absolutely an independent decision arrived at by the Review Committee keeping in mind the entire service record of the Petitioner and usefulness of the Petitioner into the services of the Respondents. In the 34 years span of his career, for 20 years, Petitioner has been busy in litigation with the Respondents. The conduct of the Petitioner has shaken the confidence of the Respondents to post him on public posts which involves public dealing.
xxx xxx xxx
31. This decision of the Review Committee is an absolutely independent proceedings and looking to the overall service record of the Petitioner, this subjective satisfaction has been arrived at by the Review Committee. There is no allegation of personal malafide upon the members of the Review Committee. What is contended by learned Senior Counsel for the Petitioner is legal malice by the Respondents because of certain observations made by the competent Courts in the litigation by the Petitioner against the Respondents.
32. Even if there are decisions in the matter of suspension, departmental inquiries and any challenge of grant of sanction for prosecution in favour of the Petitioner, that does not mean that the Petitioner cannot be compulsorily retired by the Respondents. The observations made in the orders while deciding the matter initiated by the Petitioner is one thing whereas, the order of compulsory retirement which is passed on the basis of entire service record of the Petitioner and the decision taken by Review Committee, is altogether another thing. If any employee of the Union of India has succeeded in litigation(s) that does not mean that looking to the overall service record of the Petitioner, 27 Item No.38 OA No. 2799/2019 after certain age as per rules, he cannot be retired by the Union of India. It ought to be kept in mind that compulsory retirement is a subjective satisfaction which has been formed on the basis of the entire service record. It is not a punishment. Compulsory retirement may have some adverse effect upon the employee but if the Review Committee is of the opinion that in the interest of public his services should be brought to an end by compulsory retirement after prescribed age on the basis of the entire record of service, such an employee has no right to continue into the services after a prescribed age, as per rules.
xxx xxx xxx
35. It has been held by Hon'ble Supreme Court in State of Punjab v. Gurdas Singh (1998) 4 SCC 92 in paragraph
- 11 as under:-
11. The facts in the present case are quite similar to that in Union of India v. V.P. Seth [1994 SCC (L&S) 1052 : (1994) 27 ATC 851 : AIR 1994 SC 1261] . Here also the only ground on which the order prematurely retiring Gurdas Singh was set aside was that two adverse entries after his promotion from the rank of Assistant Sub-Inspector to Sub-Inspector were not communicated to him and earlier adverse entries could not be taken into account because even when those existed Gurdas Singh had earned his promotion. It is not necessary for us to again reiterate the principles where the Court will interfere in the order of premature retirement of an employee as these have been accurately set down by various pronouncements of this Court and particularly in Baikuntha Nath Das case [(1992) 2 SCC 299 : 1993 SCC (L&S) 521 : (1992) 21 ATC 649] . Before the decision to retire a government servant prematurely is taken the authorities are required to consider the whole record of service. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well.
(emphasis supplied) 28 Item No.38 OA No. 2799/2019
36. It has been held by Hon'ble Supreme Court in Ramchandra Das v. State of Orissa & Others (1996) 5 SCC 331 in paragraph-7 as under:-
7. It is contended for the respondent that adverse entries for the two years referred to earlier and pending departmental proceedings would not be sufficient to compulsorily retire the government servant on the premises that after promotion they would become irrelevant and minor penalty was imposed. It is true that the government servant was allowed to cross the efficiency bar to enable him to avail of the benefits to draw higher scale of pay after crossing the efficiency bar. The adverse remarks made are after promotion. Even otherwise, the remarks form part of service record and character roll. The record of enquiry on conduct also would be material. Though minor penalty may be imposed on given facts and circumstances to act of misconduct, nevertheless it remains part of the record for overall consideration to retire a government servant compulsorily. The object always is public interest. The material question is whether the entire record of service was considered or not? It is not for the court/tribunal to see whether the decision of the Government to compulsorily retire the government servant is justified or not.
It is for the Government to consider the same and take a proper decision in that behalf. As stated earlier, it is settled law that the Government is required to consider the entire record of service. Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the government servant in service after he attained the required length of 29 Item No.38 OA No. 2799/2019 service or qualified period of service for pension. It is also made clear that in this case adverse entries were made only after promotion and not earlier to promotion. Compulsory retirement is not a punishment. He is entitled to all the pensionary benefits. (emphasis supplied) xxx xxx xxx
45. Much has been argued out about the ―honourable acquittal and ―acquittal on technical ground but we are not going into much detail about this aspect of the matter because the difference between the two is remarkable and noticeable and has been clarified in several decisions referred by the Hon'ble Supreme Court, but, as the Special Leave Petitions are pending, we are not going into the detail analysis of ―honourable acquittal and ―acquittal on technical ground in this case. Suffice it would be to say that even if there is acquittal from the charges levelled against the employee for one or the other reasons, an overall decision can always be taken by the Review Committee looking to the entire service record and the performance of the Central Government employee for taking a decision of compulsory retirement. There is no ban or bar for the respondents that no compulsory retirement order can be passed whenever there is quashing of the charges in any litigation between an employee and the Central Government. What is to be seen is overall assessment of the performance of an employee and his usefulness into the services and not one or two matters and decisions in those matters. This opinion is a subjective satisfaction of the Review Committee. In the present case, there is no procedural error committed by the Review Committee while taking the decision under Rule 56(j) of Fundamental Rules. Even if there are observations about malice in law while deciding few matters between the Petitioner and Union of India, that does not mean that there is presence of malice when Review Committee has taken a decision under Rule 56(j) of Fundamental Rules retiring compulsorily this Petitioner dated 10.06.2019. There is no personal malice alleged by the Petitioner upon the members of the Review Committee.
46. There is no arbitrariness on the part of the Review Committee while taking the decision of the compulsory retirement of the Petitioner, the decision is based upon the entire service record, performance of the Petitioner and the usefulness of the Petitioner into the service of the Union of India and looking to the totality of the facts and circumstances of the Petitioner, subjective satisfaction has been arrived by the Review Committee. We are not sitting in appeal against the subjective satisfaction of the Review Committee.
30Item No.38 OA No. 2799/2019
47. There is no perversity in the order of the Review Committee. Review Committee has seen the entire record of service of the Petitioner including the decision rendered in various litigations initiated by the Petitioner and Review Committee is of the opinion that the continuation of the services of the Petitioner is no longer required and he should be made compulsorily retired. xxx xxx xxxx xxx
62. It has been held by Hon'ble Supreme Court In State of Orissa vs. Ram Chandra Das (1996) 5 SCC 331 in para-7 as under:-
7. ....... ......... The object always is public interest.
The material question is whether the entire record of service was considered or not? It is not for the court/tribunal to see whether the decision of the Government to compulsorily retire the government servant is justified or not. It is for the Government to consider the same and take a proper decision in that behalf. As stated earlier, it is settled law that the Government is required to consider the entire record of service. Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the government servant in service after he attained the required length of service or qualified period of service for pension. It is also made clear that in this case adverse entries were made only after promotion and not earlier to promotion.
Compulsory retirement is not a punishment. He is entitled to all the pensionary benefits. (emphasis supplied)"
31Item No.38 OA No. 2799/2019
From the above, it is evident that there is no grey area as far as application of FR 56(j) is concerned. In a catena of judgments, it has been held that retiring a Government servant under FR 56(j) is not a punishment and such an exercise can be undertaken at the subjective satisfaction of the employer. In the instant case, the applicant‟s entire service record has been perused by the Review Committee and thereafter by the Representation Committee. Having considered the entire service record, the Competent Authority decided to retire the applicant under FR 56(j).
22. The contentions of the applicant have been discussed and we find that the impugned orders dated 28.08.2019 and 18.06.2019 passed by the Competent Authority do not suffer from any infirmity and illegality. The object of such actions is always in public interest. It has been held by the Hon‟ble Apex Court also that it is not for the Courts/Tribunals to see whether the decision of the Government to retire a Government servant is justified or not but for the Government to consider the entire record of service of the employee for taking decision to retire him under FR 56(j).
23. In view of the aforesaid, it is clearly established that the respondents have not erred in any way in passing the 32 Item No.38 OA No. 2799/2019 order under FR 56(j) to retire the applicant. It is also evident that the applicant was compulsorily retired w.e.f. 18.06.2019, i.e., more than three years back. In view of the facts, the reasons and judicial pronouncements, we find no substance in the present O.A. and the same being devoid of merit, is accordingly dismissed.
There shall be no order as to costs.
(Mohd. Jamshed) (Justice Ranjit More)
Member (A) Chairman
/jyoti/