Central Administrative Tribunal - Madras
S Natarajan vs Cabinet Secretariat on 10 February, 2025
1 OA No.310/00539 of 2020
CENTRAL ADMINISTRATIVE TRIBUNAL
CHENNAI BENCH
OA/310/00539/2020
Dated this the 10th day of February, Two Thousand Twenty Five
CORAM :
HON'BLE MR M. SWAMINATHAN. MEMBER (J)
AND
HON'BLE MR. SANGAM NARAIN SRIVASTAVA, MEMBER(A)
S. Natarajan,
S/o LateV. Selvaraj,
No.44/20-A, T.A. Koil Street,
Velacherry, Chennai ... Applicant
By Advocate M/s. Menon, Karthik, Mukundan & Neelakantan
Vs.
1. The Union of India,
Rep by its Secretary to Government (RAW)
Cabinet Secretariat, Government of India,
Paryavaran Bhavan,
No.10th Floor, (B1 & B2 Wing),
CGO Complex, Lodhi Road,
New Delhi.
2. The Additional Secretary (Personnel)
Cabinet Secretariat, Government of India,
Paryavaran Bhavan,
No.10th Floor, (B1 & B2 Wing),
CGO Complex, Lodhi Road,
New Delhi.
3. The Joint Secretary (Personnel)
Cabinet Secretariat, Government of India,
Paryavaran Bhavan,
No.10th Floor, (B1 & B2 Wing),
CGO Complex, Lodhi Road,
New Delhi.
2 OA No.310/00539 of 2020
4. Shri Sridhar Rao,
Commissioner
Special Bureau (RAW Unit)
Government of India,
C4C, III Floor, Rajaji Bhavan,
CGO Complex, Chennai.
5. Shri D. Chandrasekaran,
Additional Commissioner (Tele)
Special Bureau,
Government of India,
C4C, III Floor, Rajaji Bhavan,
CGO Complex, Chennai. .. Respondents
By Advocate Mr. Su Srinivasan, SCGSG
3 OA No.310/00539 of 2020
ORDER
(Pronounced by Hon'ble Mr. M. Swaminathan, Judicial Member) This OA has been filed by the applicant seeking the following relief:
"(i)To call for the records pertaining to the order No.64\1\2017\Pers-11-9935, dated 01.10.2018, passed by the 3rd respondent and set aside the order of compulsory retirement;
(ii) To direct the respondents 1 to 3 to reinstate the applicant in service with effect from the date of his retirement i.e., on 01.10.2018 with all consequential benefits including payment of arrears of pay and allowances in the said post and also to regularize his period of retirement by treating the same as on duty for all purposes or pay a lump sum compensation in lieu of his retirement".
2. The facts leading to the filing of the OA are as follows:
The Applicant submits that, after obtaining relief for reinstatement following a long delay from 2005 to 2014, through this Tribunal and the Hon'ble Madras High Court, he rejoined the respondent department, the Research and Analysis Wing (RAW). However, the respondent department failed to honour the orders of both this Tribunal and the Hon'ble Madras High Court, deliberately evading implementation in wilful disobedience.
The respondents obtained an interim stay from the Hon'ble Madras High Court, with the intention of delaying and harassing the applicant. As a result, the applicant suffered significant financial hardship, accumulating 4 OA No.310/00539 of 2020 heavy debt. The respondents neglected to settle the applicant's pay or provide his entitlements under the General Provident Fund (GPF) and Welfare Fund, deliberately withholding these payments. The Hon'ble Madras High Court upheld the orders of this Tribunal, but the respondent department, viewing the matter as a matter of prestige, retaliated against the applicant. The applicant raised his financial difficulties with the 3rd respondent, requesting the release of back wages lost during his suspension and removal. However, the 3rd respondent rejected the applicant's appeal through an order, dated 16.04.2015. Subsequently, the applicant filed a Review Petition before the Hon'ble Madras High Court in WP No. 21810/2013. Following the orders of the Hon'ble High Court and the Review Petition, the respondents sought to undermine the applicant by instigating the applicant's controlling officer to intimidate and harass him.
The 5th respondent even destroyed the applicant's monitoring work records. In response, the applicant lodged a complaint against the 5th respondent with respondents 2 to 4. In retaliation, the 5th respondent initiated a negative Annual Performance Appraisal Report (APAR) for 2015-2016, with the intent to harm the applicant's career. The applicant made several representations to the respondents, but received no response for three years. With no redressal forthcoming, the applicant documented these instances of harassment and operational difficulties in his APAR under the self-appraisal sections for 2016-2017, 2017-2018, and 2018- 5 OA No.310/00539 of 2020 2019. Despite receiving these APAR documents, respondents 2 to 4 chose to suppress them and took no action against the 5th respondent. The applicant further submits that the 5th respondent, in collusion with the Investigating Officer (IO), orchestrated a false APAR for 2015-2016, as revealed through the IO's and Reporting Officer's (RO) confessions. The 3rd respondent, who was also named as a party in the court case, served as the Chairman of the Review Committee. Taking advantage of his official position, the 3rd respondent decided to prematurely retire the applicant by invoking Rule 56(j), without providing a reasoned order. The applicant submitted an appeal to the 2nd respondent, explaining his grievances, but there has been no response or resolution for over six months. Under these circumstances, the applicant has filed the present OA.
3. The learned counsel for the applicant contended that the impugned order of compulsory retirement under FR 56(j) is arbitrary, unreasonable, and violative of the applicant's rights under Articles 14, 16, 21, and 311 of the Constitution of India. He submitted that the decision for compulsory retirement was biased, prejudiced, and contrary to the provisions of Rule 14 of the CCS (CCA) Rules, resulting in a gross violation of the principles of natural justice. He argued that the applicant was denied a fair opportunity to defend himself. Furthermore, he claimed that crucial documents and representations were deliberately suppressed and 6 OA No.310/00539 of 2020 misrepresented to the Review Committee in order to facilitate the applicant's retirement. Consequently, the impugned order is liable to be set aside.
4. The counsel further submitted that the 3rd respondent, who was part of the Review Committee and also a party in the Review Petition before the Hon'ble Madras High Court, misused his official position to unjustly harm the applicant. The 3rd respondent allegedly suppressed all relevant materials on record, despite the applicant lodging complaints with the 2nd respondent. He argued that this denial of fairness and transparency infringed upon the applicant's fundamental rights, particularly his right to human dignity under Article 21 of the Constitution.
5. The learned counsel further submitted that respondents 2 and 3 failed to provide the applicant with a fair opportunity to defend himself. He pointed out that crucial documents, including the applicant's current APAR and representations, were deliberately suppressed. He further alleged that the 3rd respondent failed to maintain an accurate record of the applicant and misused their official position to harm the applicant.
6. Additionally, the counsel contended that during the course of the hearing, this Tribunal, by an order, dated 03.04.2024, directed the 7 OA No.310/00539 of 2020 respondents to produce the relevant file, which was duly submitted. However, he noted that the respondents did not file any application under Section 123 of the Indian Evidence Act to claim privilege over the file. He argued that no such privilege could apply in this case, and thus requested the Tribunal to allow the perusal of the applicant's file.
7. The counsel further contended that the file produced by the respondents contains the Minutes of the Departmental Review Committee and the representation committee, which considered the applicant's case for compulsory retirement. Only by reviewing these documents can the applicant assess whether any relevant facts were omitted or if irrelevant facts were considered. He emphasized that since the record was provided by one party to the Tribunal, it is crucial that the other party be given the opportunity to review the file as well.
8. Additionally, the counsel argued that Section 22 of the Administrative Tribunals Act, 1985, mandates that the Tribunal's procedure in adjudicating disputes must adhere to the principles of natural justice. He stated that a vague plea of national security, without a clear explanation of how disclosure might harm national security, cannot be used as a valid reason to withhold material submitted to the Tribunal. Once a party furnishes material to the Tribunal, Section 22 of the AT Act ensures 8 OA No.310/00539 of 2020 that the principles of natural justice must be followed to guarantee fairness and equal opportunity for all parties involved.
9. The counsel further contended that the applicant was denied the opportunity to review the file, which is critical in light of the respondent's reply touching upon issues of integrity and performance reduction over the years. He argued that the allegation of doubtful integrity was based on a vague memo issued by the 5th respondent, not by the Investigating Officer (IO) or Reporting Officer (RO). The Memo lacked specific details regarding the applicant's alleged misconduct. The applicant denied the allegations in his reply (A-37). Moreover, the counsel pointed out that, despite the alleged incident, the applicant continued in the same position with the same duties and responsibilities. Although Respondent 1 (HQ) directed the 5th respondent to conduct an inquiry, this was not done. The applicant was also not afforded any opportunity to address the issue of doubtful integrity. He further submitted that CCTV cameras were installed, which could be used to verify the events in question.
10. He further argued that the IO and RO in the APARs for 2014-15 and 2015-16 had affirmed the applicant's integrity. Therefore, questioning his integrity should not be based on mere speculation; dishonesty does not arise suddenly without evidence. It must be substantiated by material facts, 9 OA No.310/00539 of 2020 rather than the subjective opinion of higher officials. He also noted that in a previous instance, the remark made by the controlling officer that the applicant posed a security concern was deemed unacceptable by this Tribunal. Based on these points, he requested the relief sought in the present OA.
11. In support of his contention, learned counsel relied upon the following judgements of the Hon'ble Supreme Court:
(i) Cdr Amit Kumar Sharma Vs Union of India ( 2022 SCC online SC 1570) (Para Nos.3, 21, 28 to 32)
(ii) B N Rangasami Vs Union of India (1987 3 ATC 971) (Para 35, 24, 41)
(iii) Madhyamam Broadcasting Limited Vs Union of India (2023 SCC online Sc 366) (Para Nos.2, 27, 38, 64 to 68; 84, 90 to 95; 108, 112, 169 to 173; & 184)
12. The respondents' counsel by referring to the reply statement strongly opposed the applicant's submission, maintaining that the file of the applicant with notings of the committee submitted under FR 56(j) should not be shared with the applicant or his counsel. He argued that, although privilege was not formally claimed, the document includes sensitive national security information, especially given the applicant's role in RAW, a sensitive post. He further contended that no separate application (MA) was filed by the applicant for perusal of the records.Therefore, the file should remain confidential.
10 OA No.310/00539 of 2020
13. He further submitted that the applicant has claimed that he had recorded all the issues faced by him in his self-appraisal column of his APAR for the period 2016-17, 2017-18 & 2018-19, that these issues mentioned in the APAR were suppressed by respondents 2 to 4 and were biased against the applicant. He further stated that the APAR for 2016-17, referenced as Annex A-18, was not submitted by the applicant on time and was therefore time-barred. Since the applicant failed to submit his self- appraisal by the prescribed deadline (April 15), the initiating officer proceeded with the APAR without the applicant's remarks, rendering the document (A-18 dated 07.06.2017) invalid.
14. The respondents' counsel further stated that the APAR for the period 2015-16 was returned to the applicant, who submitted a time-barred representation against it, which was rejected. However, the APARs for 2016-17 and 2017-18 could not be returned to the applicant due to his integrity being marked as doubtful. Following standard procedure, the Accepting Authority was asked to conduct an inquiry to verify the applicant's integrity and report the findings. In the 2017-18 APAR, the Accepting Authority again marked the applicant's integrity as doubtful. The case was forwarded to the Head of Department (HoD) for further action, but before any decision could be made, the applicant was prematurely retired, and the case was closed with HoD approval. 11 OA No.310/00539 of 2020
15. Further, the counsel highlighted that there is an automated system for maintaining log records, eliminating the need for manual logs. Despite this, the applicant brought A4-sized paper to record CDR information without permission. A Memo, dated 24.04.2017 from the Additional Commissioner (Tele) sought an explanation from the applicant for copying log information onto plain paper. The counsel argued that this was not a formal speaking order but merely a Memo requesting clarification. Instead of accepting his mistake, the applicant attempted to blame the officer. The Memo did not specify time frequencies or other details, as revealing such information would violate security guidelines, which are typically classified as top secret.
16. The respondents' counsel strongly denied the applicant's claim that his retirement was biased, prejudiced, and contrary to Rule 14 of the CCS (CCA) Rules. He clarified that the applicant was permanently retired under FR 56(j), a provision applicable to all Central Government employees, and that all procedural requirements were followed. The Review Committee thoroughly examined the applicant's records, including his personal files and APAR dossier. During this review, a video of the applicant admitting to his service in R&AW was found on YouTube. 12 OA No.310/00539 of 2020
17. The counsel also contended that the applicant had disclosed information protected under the Intelligence Organisation (Restrictions of Rights) Act, 1985. He noted that, after his reinstatement, the applicant reverted to his previous indifferent attitude toward work and showed disrespect for legitimate orders. The counsel attributed the applicant's behavior to a sense of arrogance fostered by his reinstatement through court orders. While the applicant initially showed improvement, he ultimately returned to his old ways. Consequently, the counsel requested the dismissal of the OA.
18. Following judgments of the Hon'ble Apex Court referred to by the learned counsel for the respondents:
(i) Baikuntha Nath Dass Vs Chief District Medical Officer (1992) 2 SCC 299 (Para No.32 & 33)
(ii) Rajasthan state Government Vs Nityananda Pati (1993) 10 SCC 551 (Para No.22 & 23)
(iii) Union of India Vs Dulal Dutt (1993) 2 SCC 179 (Para No.18 to 20)
(iv) Ram Murthy Yadav Vs State of UP (2020) 1 SCC 801 (Para No.6)
(v) Central Industrial Security Force Vs HC (GD) OM Prakash (2022) 5 SCC 100, (Para No.4) 13 OA No.310/00539 of 2020
19. We have heard both the parties at length, perused the pleadings, and the materials placed on record, including the files produced by the respondents and the case laws referred to by the respective parties.
20. Before going in to the merits and main issue of the present OA, let us consider the claim of the learned counsel for the applicant who has strenuously pressed to peruse the records produced to this Tribunal by the respondents. In this regard, he referred to the judgment, dated 05.04.2023 of the Hon'ble Supreme Court in the case of Madhyamam Broadcasting Limited Vs Union of India. We would like to extract the relevant portions of the judgment as hereunder:
"37 There are three important considerations that have to be answered in the context:
(i) Whether the non-disclosure of reasons and relevant material for the decision to deny security clearance infringes upon the right to a fair hearing, that is protected under Articles 14 and 21;
(ii) Whether the infringement of the right to a fair hearing would render the decision void; and
(iii) If considerations of national security are an established exception to principles of natural justice, how should the court resolve the competing interests represented by the principles of natural justice and national security.
38 This case presents the Court with an opportunity to clarify and lay down the law on the applicability of the principles of natural justice when issues of national security are involved. The Court must choose between the two visions of either 14 OA No.310/00539 of 2020 permitting a complete abrogation of the principles of natural justice or attempting to balance the principles of natural justice with concerns of national security. It is imperative that we analyse the purpose natural justice serves, and the jurisprudential development of procedural due process before choosing between these two competing visions".
xxxxxxxxxxxxxxxxxxxxxx G. Whether the infringement of MBL's right to a fair hearing is justified
68. The ASG in the statement filed before the High Court stated that the reasons for denial of security clearance cannot be disclosed because (i) intelligence inputs on the basis of which security clearance was denied are 'secret and sensitive'; and (ii) in the interest of national security. It has thus been submitted that the principles of natural justice stand abrogated because: firstly, the decision is based on intelligence inputs which are 'sensitive' in nature from security and intelligence agencies; and secondly, these inputs are in the interest of national security. The Union of India has relied on the judgments of this Court in Ex-Army men's Protection Services (supra) and Digi Cable Network (supra) to contend that the principles of natural justice will not apply when considerations of national security are involved. The validity of this argument has to be assessed before deciding if the State has discharged its burden justifying that the infringements on procedural guarantees are reasonable.
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108. Before addressing whether the non-disclosure of the relevant material would be in the interest of national security, it is our constitutional duty to mention the cavalier manner in which Union of India has raised the claim of national security. Other than merely claiming that national security is involved, both in the affidavit that was filed before the High Court and in the submissions before us, the Union of India made no attempt to explain how non-disclosure would be in the interest of national security. The Union of India has adopted this approach in spite of reiterations by this Court that judicial review would not be excluded on a mere mention of the 15 OA No.310/00539 of 2020 phrase 'national security'. The State is using national security as a tool to deny citizens remedies that are provided under the law. This is not compatible with the rule of law.
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185. While we have concluded that a public interest immunity claim is a less restrictive means, the dilution of procedural guarantees while hearing the claim cannot be ignored by the Court. It is only the Court and the party seeking non- disclosure of the material who are privy to the public interest immunity proceedings. The court has a duty to consider factors such as the relevance of the material to the case of the applicant while undertaking the proportionality standard to test the public interest immunity claim. However, the applicant who is unrepresented in the proceedings would be effectively impaired. While there may be material on serious concerns of national security which cannot be disclosed; the constitutional principle of procedural guarantees is equally important and it cannot be turned into a dead letter. As the highest constitutional court, it is our responsibility to balance these two considerations when they are in conflict. To safeguard the claimant against a potential injury to procedural guarantees in public interest immunity proceedings, we have recognised a power in the court to appoint an amicus curiae. The appointment of an amicus curiae will balance concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery process.
186. The amicus curiae appointed by the Court shall be given access to the materials sought to be withheld by the State. The amicus curiae shall be allowed to interact with the applicant and their counsel before the proceedings to ascertain their case to enable them to make effective submissions on the necessity of disclosure. However, the amicus curiae shall not interact with the applicant or their counsel after the public interest immunity proceeding has begun and the counsel has viewed the document sought to be withheld. The amicus curiae shall to the best of their ability represent the interests of the applicant. The amicus curiae would be bound by oath to not disclose or discuss the material with any other person, including the applicant or their counsel."
16 OA No.310/00539 of 2020
21. We have gone through the judgment cited supra in toto. In the present case, the Tribunal by an order, dated 03.04.2024 directed the respondents to produce the crucial file/documents along with other records in respect of the applicant's case. Pursuant to the direction, the same was produced on 12.06.2024 by the respondents. No Application has been filed by the applicant for perusing such records. No privilege claim was made by the respondents. We have perused the records produced by the respondents and found in the interest of justice, being a sensitive document, and in the interest of National Security, and the said document could not be even obtained by RTI Application. Hence,we reject the request of the applicant for furnishing a copy of the same or even for a perusal of the such sensitive documents.
22. The learned counsel for the applicant, regarding the scope of judicial review, cited the judgments of the Hon'ble Apex Court in Captain Pramod Kumar Bajaj v. Union of India (2023) 11 SCC 466 and Amarendra Kumar Pandey v. Union of India (2022 SCC ONLINE SC 881), to support his argument that while the Tribunal cannot re-appreciate the materials, it is empowered to review whether the respondents' decision on compulsory retirement was made with bona fide and genuine exercise of power. For clarity, the relevant excerpts from these judgments are provided below. 17 OA No.310/00539 of 2020 The relevant portions of the judgement in the case of Captain Pramod Kumar Bajaj reads thus:
"22.In State of Gujarat and Another vs. Suryakant Chunilal Shah 17, a case where the State Government had challenged the judgment of the Division Bench of the High Court of Gujarat that 16 (1996) 5 SCC 331 17 (1999) 1 SCC 529 had held that the order of compulsory retirement passed against the respondent therein was bad, as there were no adverse entries in his Confidential Report and his integrity was not doubtful at any stage, this Court held thus : -
"28. There being no material before the Review Committee, inasmuch as there were no adverse remarks in the character roll entries, the integrity was not doubted at any time, the character roll subsequent to the respondent's promotion to the post of Assistant Food Controller (Class II) were not available, it could not come to the conclusion that the respondent was a man of doubtful integrity nor could have anyone else come to the conclusion that the respondent was a fit person to be retired compulsorily from service. The order, in the circumstances of the case, was punitive having been passed for the collateral purpose of his immediate removal, rather than in public interest."
24.In Nand Kumar Verma v. State of Jharkhand and Others19 this Court has once again highlighted the permissibility of ascertaining the existence of valid material by a Court for the authorities to pass an order of compulsory retirement and observed thus: -
"34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material. It is permissible for the Courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of 18 OA No.310/00539 of 2020 the appellant was unsatisfactory, has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACRs. There appears to be some discrepancy..........."
And in the case of Amarendra Kumar Pandey, the Hon'ble Apex Court held as follows:
"29. Where an Act or the statutory rules framed thereunder left an action dependent upon the opinion of the authority concerned, by some such expression as 'is satisfied' or 'is of the opinion' or 'if it has reason to believe' or 'if it considered necessary', the opinion of the authority is conclusive, (a) if the procedure prescribed by the Act or rules for formation of the opinion was duly followed, (b) if the authority acted bona fide, (c) if the authority itself formed the opinion and did not borrow the opinion of somebody else and (d) if the authority did not proceed on a fundamental misconception of the law and the matter in regard to which the opinion had to be formed.
30. The action based on the subjective opinion or satisfaction, in our opinion, can judicially be reviewed first to find out the existence of the facts or circumstances on the basis of which the authority is alleged to have formed the opinion. It is true that ordinarily the court should not inquire into the correctness or otherwise of the facts found except in a case where it is alleged that the facts which have been found existing were not supported by any evidence at all or that the finding in regard to circumstances or material is so perverse that no reasonable man would say that the facts and circumstances exist. The courts will not readily defer to the conclusiveness of the authority's opinion as to the existence of matter of law or fact upon which the validity of the exercise of the power is predicated.
31. The doctrine of reasonableness thus may be invoked. Where there are no reasonable grounds for the formation of the authority's opinion, judicial review in such a case is permissible. [See Director of Public Prosecutions v. Head, (1959) AC 83 (Lord Denning).19 OA No.310/00539 of 2020
32.. When we say that where the circumstances or material or state of affairs does not at all exist to form an opinion and the action based on such opinion can be quashed by the courts, we mean that in effect there is no evidence whatsoever to form or support the opinion. The distinction between insufficiency or inadequacy of evidence and no evidence must of course be borne in mind. A finding based on no evidence as opposed to a finding which is merely against the weight of the evidence is an abuse of the power which courts naturally are loath to tolerate. Whether or not there is evidence to support a particular decision has always been considered as a question of law. [See Reg. v. Governor of Brixton Prison, Armah, Ex Parte, (1966) 3 WLR 828 at p. 841].
33. It is in such a case that it is said that the authority would be deemed to have not applied its mind or it did not honestly form its opinion. The same conclusion is drawn when opinion is based on irrelevant matter. [See Rasbihari v. State of Orissa, AIR 1969 SC 1081].
34. In the case of Rohtas Industries Ltd. v. S.D. Agarwal and another, AIR 1969 SC 707, it was held that the existence of circumstances is a condition precedent to form an opinion by the Government.The same view was earlier expressed in the case of Barium Chemicals Ltd. and another v. Company Law Board and others, AIR 1967 SC 295.
35. Secondly, the court can inquire whether the facts and circumstances so found to exist have a reasonable nexus with the purpose for which the power is to be exercised. In other words, if an inference from facts does not logically accord with and flow from them, the Courts can interfere treating them as an error of law. [See Bean v. Doncaster Amalgamated Collieries, (1944) 2 All ER 279 at p. 284]. Thus, this Court can see whether on the basis of the facts and circumstances found, any reasonable man can say that an opinion as is formed can be formed by a reasonable man. That would be a question of law to be determined by the Court. [See Farmer v.
Cotton's Trustees, 1915 AC 922]. Their Lordships observed:
"........... in my humble judgment where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of 20 OA No.310/00539 of 2020 law only." [See alsoMuthu Gounder v. Government of Madras, (1969) 82 Mad LW 1].
36. Thirdly, this Court can interfere if the constitutional or statutory term essential for the exercise of the power has either been misapplied or misinterpreted. The Courts have always equated the jurisdictional review with the review for error of law and have shown their readiness to quash an order if the meaning of the constitutional or statutory term has been misconstrued or misapplied. [See Iveagh (Earl of) v.Minister of Housing and Local Govt., (1962) 2 QB 147; Iveagh (Earl of) v. Minister of Housing and Local Govt. (1964) 1 AB 395].
37. Fourthly, it is permissible to interfere in a case where the power is exercised for improper purpose. If a power granted for one purpose is exercised for a different purpose, then it will be deemed that the power has not been validly exercised. If the power in this case is found to have not been exercised genuinely for the purpose of taking immediate action but has been used only to avoid embarrassment or wreck personal vengeance, then the power will be deemed to have been exercised improperly. [See Natesa Asari v. State of Madras, AIR 1954 Mad 481].
38. Fifthly, the grounds which are relevant for the purpose for which the power can be exercised have not been considered or grounds which are not relevant and yet are considered and an order is based on such grounds, then the order can be attacked as invalid and illegal. In this connection, reference may be made to Ram Manohar v. State of Bihar, AIR 1966 SC 740; Dwarka Das v. State of J. and K., AIR 1957 SC 164 at p. 168 and Motilall v. State of Bihar, AIR 1968 SC 1509. On the same principle, the administrative action will be invalidated if it can be established that the authority was satisfied on the wrong question: [See (1967) 1 AC 13].
23. Based upon the above said judgments, the main crux of the argument of the learned counsel for the applicant is that since the action of the respondents is based on subjective satisfaction it can be judicially reviewed.
21 OA No.310/00539 of 2020
24. Per contra, the learned counsel for the respondents relied on the judgment of the Hon'ble Apex Court dated 19.02.1992 in Baikuntha Nath Das & Another v. Chief District Medical Officer (1992 2 SCC 299), to support his contention that an order of compulsory retirement must be issued by the Government upon forming the opinion that it is in the public interest to retire a government servant. Such an order is based on the subjective satisfaction of the Government. The Government or the Review Committee, as applicable, is required to consider the entire service record before making a decision, including both favourable and adverse entries in the confidential records or character rolls. While there may be numerous remarks or comments that are not adverse in nature, they are still relevant for the purposes of F.R. 56(i) or the corresponding rule. The learned counsel further argued that an order of compulsory retirement is not a punitive measure and does not carry any stigma or imply misbehaviour; therefore, the principles of natural justice do not apply in the context of such an order. The following excerpts from the aforementioned judgment are relevant to support the contention of the learned counsel for the respondents.
"31. Another factor to be borne in mind is this: most often, the authority which made the adverse remarks and the authority competent to retire him compulsorily are not the same. There is no reason to presume that the authority competent to retire 22 OA No.310/00539 of 2020 him will not act bonafide or will not consider the entire record dispassionately. As the decided cases show, very often, a Review Committee consisting of more than one responsible official is constituted to examine the cases and make their recommendation to the government. The Review Committee, or the government, would not naturally be swayed by one or two remarks, favourable or adverse. They would form an opinion on a totality of consideration of the entire record - including representations, if any, made by the government servant against the above remarks - of course attaching more importance to later period of his service. Another circumstance to be borne in mind is the unlikelihood of succession of officers making unfounded remarks against a government servant".
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34. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or
(c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be perverse order.
(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both 23 OA No.310/00539 of 2020 favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interfere. Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 29 to 31 above.
25. The learned counsel further asserted that there is very limited scope for judicial review in cases of compulsory retirement, as it is neither punitive nor stigmatic. In this regard, he relied on the judgment, dated 16.09.2013 of the Hon'ble Apex Court in Rajasthan State Road Transport Corporation & Others v. Babu Lal Jangir (2013) 10 SCC 551), where the decision of compulsory retirement was upheld. The relevant portions of the judgment for this case are reproduced below:
"21. Stating that the judgment of larger Bench would be binding, the washed off theory is summed up by the Court in the following manner:(Pyare Mohan Lal vs, State of Jharkhand (2010 (10 SCC 693) "In view of the above, the law can be summarised to state that in case there is a conflict between two or more judgments of this Court, the judgment of the larger Bench is to be followed. More so, the washed off theory does not have universal application. It may have relevance while considering the case of government servant for further promotion but not in a case where the employee is being assessed by the Reviewing Authority to determine whether he is fit to be retained in service or requires to be given compulsory retirement, as the Committee is to 24 OA No.310/00539 of 2020 assess his suitability taking into consideration his "entire service record".
22. It clearly follows from the above that the clarification given by two Bench judgment in Badrinath is not correct and the observations of this Court in Gurdas Singh to the effect that the adverse entries prior to the promotion or crossing of efficiency bar or picking up higher rank are not wiped off and can be taken into account while considering the overall performance of the employee when it comes to the consideration of case of that employee for premature retirement.
23. The principle of law which is clarified and stands crystallized after the judgment in Pyare Mohan Lal v. State of Jharkhand and Ors.; 2010 (10) SCC 693 is that after the promotion of an employee the adverse entries prior thereto would have no relevance and can be treated as wiped off when the case of the government employee is to be considered for further promotion. However, this 'washed off theory' will have no application when case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given compulsory retirement. The rationale given is that since such an assessment is based on "entire service record", there is no question of not taking into consideration an earlier old adverse entries or record of the old period. We may hasten to add that while such a record can be taken into consideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage. For example, as against some very old adverse entries where the immediate past record shows exemplary performance, ignoring such a record of recent past and acting only on the basis of old adverse entries, to retire a person will be a clear example of arbitrary exercise of power. However, if old record pertains to integrity of a person, then that may be sufficient to justify the order of premature retirement of the government servant.
24. Having taken note of the correct principles which need to be applied, we can safely conclude that the order of the High Court based solely on the judgment in the case of Brij Mohan Singh Chopra was not correct. The High Court could not have set aside the order merely on the ground that service record pertaining to the period 1978-90 being old and stale could not 25 OA No.310/00539 of 2020 be taken into consideration at all. As per the law laid down in the aforesaid judgments, it is clear that entire service record is relevant for deciding as to whether the government servant needs to be eased out prematurely. Of course, at the same time, subsequent record is also relevant, and immediate past record, preceding the date on which decision is to be taken would be of more value, qualitatively. What is to be examined is the "overall performance" on the basis of "entire service record" to come to the conclusion as to whether the concerned employee has become a deadwood and it is public interest to retire him compulsorily. The Authority must consider and examine the overall effect of the entries of the officer concerned and not an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the Authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee "rendered himself a liability to the institution", there is no occasion for the Court to interfere in the exercise of its limited power of judicial review."
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27. It hardly needs to be emphasized that the order of compulsory retirement is neither punitive nor stigmatic. It is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. Interference is permissible only on the ground of non application of mind, malafide, perverse, or arbitrary or if there is non-compliance of statutory duty by the statutory authority. Power to retire compulsorily, the government servant in terms of service rule is absolute, provided the authority concerned forms a bonafide opinion that compulsory retirement is in public interest.(See: AIR 1992 SC 1368)
28. Accordingly, we have no option but to set aside the impugned order of the High Court thereby upholding order of the compulsory retirement. The appeal is allowed with no order as to costs."
26. He also relied on the judgment of the Hon'ble Apex Court dated 26 OA No.310/00539 of 2020 10.12.2019 in Ram Murthi Yadav v. State of Uttar Pradesh & Another (2020) 1 SCC 801), which highlights the limited scope for judicial review of orders of compulsory retirement based on the subjective satisfaction of the employer, unless such orders are found to be arbitrary, capricious, or made in bad faith. Furthermore, he emphasized that, while exercising judicial review, the court does not function as an appellate authority. In the cited case, the Apex Court held as follows:
"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 malafides, 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.
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11. The question was again considered in Rajendra Singh Verma (D) thr. Lrs. vs. Lt. Governor (NCT of Delhi), (2011) 10 SCC 1, reiterating the principle laid down in High Court of Judicature at Bombay vs. Shashikant S. Patil & Anr., (2000) 1 SCC 416, this Court observed as follows:
"191. ... in case where the Full Court of the High Court recommends compulsory retirement of an officer, the High Court on the judicial side has to exercise great caution and circumspection in setting aside that order because it is a complement of all the Judges of the High Court who go into the question and it is possible that in all cases evidence would not be forthcoming about integrity doubtful of a judicial officer...." It was further observed that:27 OA No.310/00539 of 2020
"192. ... If that authority bona fide forms an opinion that the integrity of a particular officer is doubtful, the correctness of that opinion cannot be challenged before courts. When such a constitutional function is exercised on the administrative side of the High Court, any judicial review thereon should be made only with great care and circumspection and it must be confined strictly to the parameters set by this Court in several reported decisions. When the appropriate authority forms bona fide opinion that compulsory retirement of a judicial officer is in public interest, the writ court under Article 226 or this Court under Article 32 would not interfere with the order."
13.P.C. Joshi (supra) was a case relating to an order of punishment in a departmental proceeding held to be vitiated for want of any legally acceptable or relevant evidence in support of the charges of misconduct. Ramesh Chander Singh (supra) related to an order of bail dealing with exercise of discretionary powers specially when a co- accused had been granted bail by the High Court. An order of compulsory retirement not been a punishment, much less stigmatic in the facts and circumstances of the present case. Ram Ekbal Sharma(supra) was dealing with the issue that the form of the order was not conclusive and the veil could be lifted to determine if it was ordered as punishment more so in view of the stand taken in the counter affidavit with regard to grave financial irregularities, again has no relevance to the present controversy."
27. The learned counsel for the respondents further argued that a speaking order is not required in cases of compulsory retirement, as it is a prerogative of the Government. To support this contention, he referred to the decision of the Hon'ble Apex Court dated 05.02.1993 in Union of India & Others v. Dulal Dutt (1993) 2 SCC 179), in which it was held as follows:
28 OA No.310/00539 of 2020
"18. It will be noticed that the Tribunal completely erred in assuming in the circumstances of the case, that there ought to have been some order for compulsory retirement. This Court has been repeatedly emphasising right from the case of R-L Butail v. Union of India, [1970] 2 SCL 876 and Union of India v. J.N. Sinha [1970] 2 SCC 458 that an order of compulsory retirement is not an order of punishment. It is actually a prerogative of the Government but it should be based on material and has to be passed on the subjective satisfaction of the Government. Very often, on enquiry by the Court the Government may disclose the material but it is very much different from the saying that the order should be a speaking order. No order of compulsory retirement is required to be a speaking order. From the very order of the Tribunal, it is clear that the Government had, before it, the report of the Review Committee yet it thought it fit of compulsory retiring the respondent. The order cannot be called either mala fide or arbitrary in law.
19. We are thus constrained to allow this appeal with costs and set aside the impugned order of the Tribunal dated 29th May, 1992 and dismiss the application of the respondent filed before the Tribunal against the impugned order of compulsory retirement of the respondent."
28. From the above judgments, it can be concluded that premature retirement is not a punishment and does not carry any stigma or civil consequences. The right to initiate premature retirement rests solely with the Government, and it is a prerogative exercised in the public interest. A speaking order is not required for such a decision. Judicial review of compulsory retirement, based on the subjective satisfaction of the employer, is extremely limited in scope, and courts generally refrain from interfering. Rule 56(j) of the Fundamental Rules reflects the "Doctrine of 29 OA No.310/00539 of 2020 Pleasure," which allows the Government specifically the Union of India to compulsorily retire an employee if it is deemed in the public interest that the employee's continued service would not serve any useful purpose.
29. Under Rule 56(j), from the time a government employee joins service until the age of 50, there is ample opportunity for improvement in performance, demonstrating loyalty and usefulness to the Government. Employees, whether honest or dishonest, may exhibit varying levels of enthusiasm or lethargy in their work. Sometimes, even when charges are quashed, employees are continued in service. However, there comes a point when the Government, after a review by the Committee, assesses the employee's service record, performance, and future utility to the Government. If deemed necessary, the Union of India has the authority under Rule 56(j) to compulsorily retire the employee, even if certain charges against them have been acquitted.
30. We are mindful of the fact that it is well-settled law that the scope of judicial review in cases of compulsory retirement is extremely limited. Judicial review is only permissible on narrow grounds, such as non- application of mind or malafide intent. In this case, the requisite due application of mind appears to have been met, as the decision was made 30 OA No.310/00539 of 2020 following a series of discussions, exchanges, and consultations within the relevant organizations.
31. Given these circumstances, we find no reason to interfere with the order passed by the respondents under FR 56(j) for the compulsory retirement of the applicant. In light of the above, we conclude that the OA lacks merit and, accordingly, dismiss it. No order is made as to costs.
(SANGAM NARAIN SRIVASTAVA) (M. SWAMINATHAN)
MEMBER(A) MEMBER(J)
10. 02..2025
mas