TaxTMI 
TaxTMI 
2021 (10) TMI 39
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....nnexure P-2 to the memo of this petition) passed by the Respondents of compulsorily retiring the petitioner was not interfered with. Similarly, order dated 19.08.2019 (Annexure P-3 to the memo of this petition) passed by the Respondents rejecting the representation of the Petitioner was also not interfered with by the Tribunal. Thus, the order passed by the Respondents under Rule 56(j) of Fundamental Rules of retiring the Petitioner with immediate effect from 10.06.2019 was not interfered with and since then the Petitioner already stands retired from services of the Respondents. FACTUAL MATRIX 2. The factual matrix of the case is as follows:- 2.1 Petitioner is an officer of Indian Revenue Services ('IRS') of 1985 batch. 2.2 On 06.11.1996, the Petitioner was appointed as Deputy Director of Enforcement (Delhi Zone) where he supervised the investigation of cases pertaining to Foreign Exchange Regulation Act (FERA). 2.3 On 01.01.1998, search was conducted by Enforcement Directorate officers at the business and residential premises of one hawala dealer, namely, Subhash Barjatya. Incriminating materials were seized including several documents and, thereafter Mr. Barjatya w....
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.... Representative at ITAT, New Delhi. 2.17 Thereafter, representations were made by the Petitioner for his posting under Senior Officer. 2.18 The Petitioner preferred one more litigation being W.P.(Crl.) No.1401/2012 for quashing both the criminal cases. This petition was allowed. 2.19 Two charge sheets were issued to the Petitioner on 14.03.2014 & 20.03.2014 under Rule 14 of CCS(CCA) Rules. Against the same, O.As. were preferred by the Petitioner and they were allowed vide order dated 12.02.2016 by the Central Administrative Tribunal, Principal Bench, New Delhi. The Writ petitions preferred by the Respondents were dismissed by the High Court. Thereafter, Special Leave Petitions preferred by the Respondents were also dismissed. 2.20 "Sealed cover" procedure was adopted in the case of the Petitioner was opened on 26.03.2019 and it was found out that Departmental Promotion Committee found him unfit for promotion. 2.21 In a matter pending before the High Court being C.M.No.11272/2019 in W.P.(C) 9230/2016, the Respondents assured that the case of the Petitioner would be examined in the light of the adjudication that has taken place in various cases. An order was passed by ....
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....nt is in violation of the assurance given by the learned Additional Solicitor General in C.M.No.11272/2019 and C.M.No.19013/2019 in W.P.(C) No.9230/2016. He pointed out the orders dated 06.05.2019 and 27.05.2019 passed in the aforesaid applications. 3.6 Learned Senior Counsel in support of the present petition, relied on the following decisions: i) Swaran Singh Chand vs Punjab State Electricity (2009) 13 SCC 758; ii) S.R. Venkataraman v. Union of India 1979 (2) SCC 491 iii) Bihar State Govt. Sec. Sci. Teachrs Assn. v. Ashok Kumar Sinha & Ors (2014) 7 SCC 416 iv) Yogesh M Vyas v. Registrar, High Court of Gujarat, Civil Appeal No.4514/2010 decided on 03.09.2019 by Hon'ble Supreme Court v) Ram Lakhan Singh vs. State of Uttar Pradesh, (2015) 6 SCC 715 vi) State of Orissa vs. Debendra Nath Padhi (2007) 14 SCC 568 vii) (1992) SCC Online AP (High Court of Andhra Pradesh) viii) Gujarat and Another vs State of Chunilal Shah (1999) 1 SCC 529 ix) Baikuntha Nath Das v. Chief District Medical Officer (1992) 2 SCC 299 x) Rajesh Gupta v. State of J&K (2013) 3 SCC 514 xi) State of Gujarat v. Umed ....
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....e made before the Tribunal and not directly in the High Court. This order was upheld by the Supreme Court and the SLP was dismissed on 21.10.2019. 4.3 It is further submitted by learned counsel for the Respondents that the order of compulsory retirement passed by the Respondents is independent decision taken by the Respondents by Review Committee after considering the entire service record of the Petitioner and Review Committee after considering the entire service record was of the opinion that the Petitioner is no longer useful into the service of the Respondents. 4.4 Learned counsel for the Respondents has taken this Court to criminal cases filed against the Petitioner by CBI and has submitted that the following two cases were registered against the Petitioner:- i) RC S18-1999/E-001: it was alleged that Shri Ashok Kumar Aggarwal and one Mr. Abhishek Verma were involved in criminal conspiracy by way of forging a document (a fax message) and using it as a genuine document with the intention to create false evidences to implicate one Shri S. C. Barjatya. ii) RC S-19/1999/E-001: The case was registered against Shri Ashok Kumar Aggarwal for alleged possession o....
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....ontinuing in the services will not be useful to the public and is injurious to public interest and the services of the Petitioner are no longer useful to the general administration. The conduct of the Petitioner is unbecoming of a Government servant and is injurious to public interest and obstructs the efficiency in public services. 4.11 It is also submitted by counsel appearing for the Respondents that the Government of India has absolute right to retire a Government Servant in public interest and, therefore, in the light of the aforesaid, the Review Committee recommended that the Petitioner be compulsorily retired in public interest under Rule 56(j) of Fundamental Rules. 4.12 The learned counsel submitted that the Review Committee also clarified that the pre-mature retirement of the Petitioner is not being recommended as punitive measure and that the order of compulsory retirement will not be treated as punishment under Article 311 of the Constitution of India. 4.13 The learned counsel has taken this Court in detail to the counter affidavit filed by the Respondents in O.A.1835/2020 and has explained in detail, the scope of compulsory retirement under Rule 56(j) of Fundam....
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....nical ground, that entire material was not placed before the Sanctioning Authority at the time of granting of sanction. Thus, decision of the High Court is under challenge and matters are pending before the Supreme Court. 4.18 Learned counsel appearing on behalf of the Petitioner has argued at length about "honourable acquittal" and "acquittal on technical ground" on the basis of several decisions. 4.19 It is further submitted that the order of compulsory retirement is absolutely independent decision taken by the Review Committee based on entire service record of the Petitioner and the Review Committee had arrived at a subjective satisfaction that the Petitioner must be retired under Rule 56(j) of Fundamental Rules in public interest. 4.20 He also submitted that this Court is not sitting in appeal against the decision of the Review Committee and that there is no malafide on the part of the Respondents while taking the decision of compulsory retirement of the Petitioner nor there is any arbitrariness on the part of the Respondents while passing the order of compulsory retirement. The said order has been passed upon recommendation of the Review Committee after looking to the....
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....ted 19.08.2019 (Annexure P-3) passed by the Respondents whereby representation of the Petitioner was rejected. This Petitioner has been compulsorily retired under Rule 56(j) of Fundamental Rules by Respondents. This order has not been interfered with by the Tribunal, hence, the Original Applicant has preferred the present petition under Article 226 and 227 of the Constitution of India. 6. Petitioner is an officer of 1985 batch of Indian Revenue Service. In exercise of powers under Rule 56(j) of Fundamental Rules, Respondents have compulsorily retired the Petitioner vide order dated 10.06.2019. For ready reference, the said order is reproduced hereunder:- "ORDER NO. A 147/2019 WHEREAS the President is of the opinion that it is in the public interest to do so; Now, THEREFORE, in exercise of the powers conferred by clause (j) of rule 56 of the Fundamental Rules, the President hereby retires Sh. Ashok Kumar Aggarwal (85042) Joint Commissioner of Income Tax with immediate effect from the afternoon of 11 June 2019 on completing 50 years of age and shall be paid a sum equivalent to the amount of his pay and allowances for a period of three months calculated at the ....
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....arrived at by the Review Committee and a recommendation was made for compulsory retirement of the Petitioner in public interest, which was accepted by Union of India and Petitioner was made compulsorily retired in public interest. 12. The Central Government considering the aforesaid recommendation of the Review Committee, by its order dated 10.06.2019 passed an order of compulsory retirement in public interest, of the Petitioner with effect from 11.06.2019. 13. Much has been argued out by learned Senior Counsel appearing on behalf of the Petitioner about the order of compulsory retirement dated 10.06.2019 mainly on the ground that this Petitioner has succeeded in several litigations against Union of India and hence, the order of compulsory retirement is tainted with malice in law and also on the ground that there is a delay on the part of the Respondents while passing the order of compulsory retirement and the same is contrary to the undertaking given to Delhi High Court in C.M.No.11272/2019 in W.P.(C) No.9230/2016. 14. None of the aforesaid grounds raised by the learned Senior Counsel for the Petitioner is accepted by this Court. It ought to be kept in mind that order of ....
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....6] and A.K. Kraipak v. Union of India [(1969) 2 SCC 262 : AIR 1970 SC 150] . Indeed, the said decisions were relied upon to contend that even in such a case the principles of natural justice required an opportunity to be given to the government servant to show cause against the proposed action. The contention was not accepted as stated above. The principles enunciated in the decision have been accepted and followed in many a later decision. There has never been a dissent - not until 1987. xxx xxx xxx 33. At this stage, we think it appropriate to append a note of clarification. What is normally required to be communicated is adverse remarks - not every remark, comment or observation made in the confidential rolls. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56(j) or a rule corresponding to it. The object and purposes for which this power is to be exercised are well stated in J.N. Sinha [(1970) 2 SCC 458 : (1971) 1 SCR 791] and other decisions referred supra. 34. The following principles emerge from the above discussion: (i) An order of compulsory ret....
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....ffers from mala fides or that it is based on no evidence or that it is arbitrary." (emphasis supplied) 17. Compulsory retirement involves no civil consequences. The Government servant does not loose any of the rights acquired by him before retirement while a minimum service is granted to the Government Servant, the Government is given power to energize its machinery and make more efficient by compulsory retiring those who in its opinion should not continue in the service of the Government in the interest of public. 18. It has been held by Hon'ble the Supreme Court in Union of India v. Col. J.N. Sinha 1970(2) SCC 458 in para-8, 9 and 10 as under:- "8. Fundamental Rule 56(i) in terms does not require that any opportunity should be given to the concerned government servant to show cause against his compulsory retirement. A government servant serving under the Union of India holds his office at the pleasure of the President as provided in Article 310 of the Constitution. But this "pleasure" doctrine is subject to the rules or law made under Article 309 as well as to the conditions prescribed under Article 311. Rules of natural justice are not embodied rules nor can th....
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.... 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 Article 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 a person of undoubted ability and integrity should be there. There is no ....
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.... of benefits already earned by him and there is no element of punishment. Sub-rules (2), (3) and (4) of Rule 135 reinforce this view as the same provide for appropriate benefits such as pension, gratuity, lump sum amount, etc. for the public servant who has been subjected to compulsory retirement. Thus, the employee is not faced with any loss of benefits already earned. We say so because the examination of the characteristics of such a rule is not focussed around the motive or underlying intent behind its enactment, rather, it lies in the consequence and effect of the operation of such a rule on the outgoing employee. The rule does not result into a deprivation of the retired employee of any benefit whatsoever in lieu of such order of compulsory retirement and thus, attracts no stigma or any civil consequence to the retired employee for his/her future. The invocation of this Rule, therefore, falls in sync with the second proposition in Shyam Lal [State of U.P. v. Shyam Lal Sharma, (1971) 2 SCC 514] which looks down upon any loss of profits in a non-stigmatic order of compulsory retirement. Succinctly put, a compulsory retirement without anything more does not attract Article 311(2)....
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....311 reveals that Article 311 is confined to the cases wherein an inquiry has been commenced against an employee and an action of penal nature is sought to be taken. Whereas, Article 309 covers the broad spectrum of conditions of service and holds a wider ground as compared to Article 311. That would also include conditions of service beyond mere dismissal, removal or reduction in rank. It holds merit to state that this wide ground contemplated under Article 309 also takes in its sweep the conditions regarding termination of service including compulsory retirement. In Pradyat Kumar Bose v. Chief Justice of Calcutta High Court [Pradyat Kumar Bose v. Chief Justice of Calcutta High Court, AIR 1956 SC 285] , this Court touched upon the ambit and scope of Article 309 of the Constitution and expounded that the expression "conditions of service" takes within its sweep the cases of dismissal or removal from service. 43. We further note that generally it is correct to say that the rules governing conditions of service, framed under Article 309, are subject to other provisions of the Constitution, including Article 311. The opening words of Article 309 - "Subject to the provisions of....
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.... b) SLP(Crl.) No.10112/2016, c) SLP (Crl.) No.418/2017 and d) SLP (Crl.) No.419/2017. 24. These SLPs are preferred against the common judgment and order dated 13.01.2016 delivered by Delhi High Court. All these SLPs are pending before the Supreme Court. 25. Much has been argued out by learned Senior Counsel appearing on behalf of the Petitioner that there are several litigations initiated by the Petitioner for suspension, quashing of the charge sheets in departmental proceedings, for quashing of the sanction for prosecution, for getting promotions etc. and the Petitioner has succeeded in all these litigations. This constitutes malafide in law on the part of the Respondents. 26. Learned Senior Counsel has also taken this Court to various orders passed by different Courts in varieties of matters filed by him and has pointed out that in few matters, there are observations in the judgment about legal malice on the part of the Respondents. 27. Much emphasis was given by the learned Senior Counsel, Mr. Vikas Singh appearing on behalf of the Petitioner that looking to the observations in the aforesaid matters, there is malice on the part of the Respondents w....
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....ord 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, after certain age as per rules, he cannot be retired by the Union of India. It ought to be kep....
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....ic 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) 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 i....
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.... in State of U.P. vs. Vijay Kumar Jain, (2002) 3 SCC 641 which relied upon the judgment in Shyamlal vs. State of U.P. AIR 1954 SC 369 in paragraph 10 as under:- "10. Before we advert to the question which we are required to decide, it is necessary to notice the nature of an order compulsorily retiring a government servant under FR 56(c). In Shyamlal v. State of U.P. [AIR 1954 SC 369 : (1955) 1 SCR 26] it was held that an order of compulsory retirement is neither a punishment nor is any stigma attached to it and it was held therein as thus: (SCR pp. 41-42) "There is no such element of charge or imputation in the case of compulsory retirement. The two requirements for compulsory retirement are that the officer has completed twenty-five years' service and that it is in the public interest to dispense with his further services. It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note 1 to Article 465-A make it abundantly clear that an imputation or char....
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....y of the administration or to weed out the people of doubtful integrity or are corrupt but sufficient evidence was not available to take disciplinary action in accordance with the rules so as to inculcate a sense of discipline in the service. But the Government, before taking such decision to retire a government employee compulsorily from service, has to consider the entire record of the government servant including the latest reports." (emphasis supplied) 42. Learned Solicitor General of India on behalf of the Respondents submitted that the Petitioner has been given benefit of technical ground for quashing the orders of sanction for criminal prosecution in 2 CBI cases registered against him, against which SLPs (Crl.) are pending before Hon'ble Supreme Court and, they are as under:- a) SLP(Crl.) No.10083/2016, b) SLP(Crl.) No.10112/2016, c) SLP (Crl.) No.418/2017 and d) SLP (Crl.) No.419/2017. 43. Learned Solicitor General of India submitted that there are serious charges against the Petitioner in the aforesaid criminal cases which have been investigated by CBI, one of which is regarding disproportionate assets case. The details of t....
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....ifference 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 un....
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....fter the age of 50 years of the Petitioner. It has been held by Hon'ble Supreme Court in Union of India v. Nasirmiya Ahmadmiya Chauhan (1994) Suppl.(2) SCC 537 in paragraph - 3 as under:- "3. We have heard learned counsel for the parties. This Court has authoritatively laid down in various judgments that the power under Fundamental Rule 56(j) can be exercised by the appropriate authority at any time in public interest after the government servant has attained the relevant age or has completed the period of service as provided under the Fundamental Rules. The appropriate authority has to form the opinion that it is in the public interest to retire a person under Fundamental Rule 56(j) on the basis of the service record of the person concerned. There is no other bar for the exercise of the power under the said Fundamental Rule by the prescribed authority. Government instructions relied upon by the Tribunal are only the guidelines laid down by the Central Government for its functioning. A government servant cannot be heard to say that though the order of retirement is justified on the basis of his service record but since there is violation of some Government instructions....
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....ective satisfaction of the Review Committee, on merits, cannot be challenged before this court. It has been held by Hon'ble Supreme Court in Nisha Priya Bhatia vs. UOI & Anr.(Supra) in paragraphs 54 and 71, as under "54. Given the factual matrix of the present case, we deem it proper to carve out some important events from the aforementioned chain. The aforementioned sequence of events reveals the chain of internal communications in the aftermath of which the order dated 18-12-2009 was eventually passed. The secret note sent by the Secretary (R) to PMO, dated 11-5-2009, opinion of the then Solicitor General of India by Letter dated 21-7-2009, opinion of the Department of Legal Affairs, Union Ministry of Law and Justice and the PMO note in which the invocation of Rule 135 was determined as the only viable option, constitute together a complete chain of inquiry revealing due application of mind by the respondents into the question of compulsory retirement. 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 ....
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....are Mohan Lal vs. State of Jharkhand (2010) 10 SCC 693. "18. Thus, the law on the point can be summarised to the effect that an order of compulsory retirement is not a punishment and it does not imply stigma unless such order is passed to impose a punishment for a proved misconduct, as prescribed in the statutory rules. (See Surender Kumar v. Union of India [(2010) 1 SCC 158 : (2010) 1 SCC (L&S) 24] .) 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. xxx xxx xxx 21. However, a three-Judge Bench of this Court in State of Orissa v. Ram Chandra Das [(1996) 5 SCC 331 : 1996 SCC (L&S) 1169] had taken a differen....
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....ent over the same as an appellate authority. Principles of natural justice have no application in a case of compulsory retirement." (emphasis supplied) 56. There are serious allegations against the Petitioner of corruption and of disproportionate assets including CBI cases for which sanction was given for prosecution and the SLPs are pending before the Hon'ble Supreme Court. Even if the employee has succeeded in one or two cases or in few cases against the Central Government, that does not make him "compulsory retirement proof" employee. Such type of employee can also be made compulsory retired if looking to the entire service record and overall performance of the employee, usefulness of the employee into further service is not in public interest. There can be water proof tents or heat proof houses but there cannot be "compulsory retirement proof employee" even if, he has succeeded in few cases against the Central Government. 57. This aspect of the matter have been properly appreciated by the Review Committee while arriving at a subjective satisfaction of compulsory retirement of the Petitioner and these aspects of the matter have also been properly appreciated by the ....
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....y upon the decision making process under Rule 56(j) of Fundamental Rules. Even if promotion is due, a decision can always be taken by the Respondents under Rule 56(j) of Fundamental Rules. 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 comp....