TaxTMI 
TaxTMI 
2023 (3) TMI 384
X X X X Extracts X X X X
X X X X Extracts X X X X
....as a Permanent Commissioned Officer in the Indian Army, inducted in the year 1980. Due to a physical disability suffered by him in the course of Army operations, he was demobilized and released from service. In the year 1989, the appellant qualified the Civil Services Examination. He was appointed as an Officer and allocated to the 1990 Batch in the Indian Revenue Service. In due course of his service, the appellant was promoted to higher posts and on 12th January, 2012, he was promoted to the rank of Commissioner, in the Department of Income Tax. On 7th July, 2014, the appellant was selected and empanelled for appointment as a Member of the Income Tax Appellate Tribunal For short 'ITAT' by the Selection Committee headed by a sitting Judge of the Supreme Court nominated by the then Chief Justice of India. On 15th July, 2015, the respondents forwarded the name of the appellant to the Appointments Committee of the Cabinet For short 'ACC' along with his vigilance clearance for appointment as Member (Accountant), ITAT. In the year 2016, the appellant was empanelled by the ACC for appointment as Joint Secretary to the Government of India. From the year 2017 onwards, started a saga of li....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d by this Court on 29.03.2019. 5. Aggrieved by the aforesaid action taken by the respondents of placing his name in the Suspect List, the appellant approached the Tribunal for a third time and in the said proceedings, an interim order was granted in his favour. Finally, vide common judgment dated 6th March, 2019, the Tribunal allowed two Original Applications filed by the appellant [O.A. No.137 of 2018 and O.A. No.279 of 2018], quashing inclusion of his name in the "Agreed List" and the consequential proceedings as also the decision taken by the respondents to deny him vigilance clearance. The Tribunal also directed the respondents to forward the name of the appellant to the appropriate Authority for selection/appointment to the post of Member, ITAT. However, the respondents did not comply with the said order and filed a writ petition before the High Court. Admittedly, no interim order was passed by the High Court staying the operation of the judgment dated 06th March, 2019, passed by the Tribunal. 6. Aggrieved by the non-compliance of the order dated 30th May, 2017, passed by the High Court in his favour, the appellant filed a contempt petition before the High Court. Vide order ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he concerned Officer. Once the Competent Authority passes an order of pre-mature retirement under FR 56(j), the aggrieved Officer is entitled to submit a representation to the Representation Committee. As per the records, the appellant had submitted a representation to the Representation Committee, which was turned down on 2nd January 2020. 9. The appellant challenged the final order of compulsory retirement issued against the appellant on 27th September, 2019 and the subsequent order dated 2nd January, 2020, passed by the Representation Committee declining to interfere in the order of compulsory retirement, before the Tribunal. The said petition was dismissed, vide judgment dated 9th December, 2020 and upheld by the High Court by the impugned judgment dated 31st May, 2022. THREEFOLD CHALLENGE 10. A threefold challenge has been laid by the appellant to the impugned judgment. Firstly, on the ground of serious prejudice caused to him due to the active participation of the Additional Director General (Vigilance) as a Member of the Internal Committee when he had a bias against the appellant and the participation of the then Chairman of the CBDT in the meeting of the Review Committe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... was carefully considered by the Tribunal before dismissing the Original Application filed by the appellant, as meritless and that the allegations of institutional malice and bias levelled by the appellant are ill-founded. Learned ASG contended that unlike departmental enquiries, the scope of an enquiry under FR 56(j) is fairly limited and the standard of adjudication is prima facie a subjective opinion as to the suitability of an officer to continue in service, keeping in mind public interest. No stigma can be attached to an employee who is compulsorily retired, as compulsory retirement does not amount to dismissal or removal. The appellant is still entitled to all retiral benefits and also entitled to be considered for other appointments. It was stated that a chargesheet was pending against the appellant for major penalty proceedings which had been unsuccessfully challenged by him before the Tribunal. Citing several decisions of this Court on the limited scope of interference in an order of compulsory retirement, it was submitted on behalf of the respondents - Union of India that courts should ordinarily refrain from returning findings on merits of the allegations against the con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ative in the service and also to dispense with the services of those whose integrity is doubtful so as to preserve purity in the administration. Generally speaking, Service Rules provide for compulsory retirement of a government servant on his completing certain number of years of service or attaining the prescribed age. His service record is reviewed at that stage and a decision is taken whether he should be compulsorily retired or continued further in service. There is no levelling of a charge or imputation requiring an explanation from the government servant. While misconduct and inefficiency are factors that enter into the account where the order is one of dismissal or removal or of retirement, there is this difference that while in the case of retirement they merely furnish the background and the enquiry, if held - and there is no duty to hold an enquiry - is only for the satisfaction of the authorities who have to take action, in the case of dismissal or removal they form the very basis on which the order is made, as pointed out by this Court in Shyam Lal v. State of U.P. and State of Bombay v. Saubhagchand M. Doshi. Thus, by its very nature the power to compulsorily retire a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n formed or the decision is based on collateral grounds or that it is an arbitrary decision." 18. On similar lines were the observations made by this Court in Swami Saran Saxena v. State of U.P. (1980) 1 SCC 12 :- "3. Several contentions have been raised in this appeal by the appellant, who appears in person. In our judgment, one of them suffices to dispose of the appeal. The contention which has found favour with us is that on a perusal of the material on the record and having regard to the entries in the personal file and character roll of the appellant, it is not possible reasonably to come to the conclusion that the compulsory retirement of the appellant was called for. This conclusion follows inevitably from the particular circumstances, among others, that the appellant was found worthy of being permitted to cross the second efficiency bar only a few months before. Ordinarily, the court does not interfere with the judgment of the relevant authority on the point whether it is in the public interest to compulsorily retire a government servant. And we would have been even more reluctant to reach the conclusion we have, when the impugned order of compulsory retirement was made ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the court, if challenged, in appropriate cases can lift veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such case cannot deter the court from delving into the basis of the order if the order in question is challenged by the concerned government servant as has been held by this Court in 'Anoop Jaiswal case'. This being the position the respondent-State cannot defend the order of compulsory retirement of the appellant in the instant case on the mere plea that the order has been made in accordance with the provisions of Rule 74(b)(ii) of the Bihar Service Code which prima facie does not make any imputation or does not cast any stigma on the service career of the appellant. But in view of the clear and specific averments made by the respondent-State that the impugned order has....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of Gujarat vs. Umedbhai M. Patel (2001) 3 SCC 314, this Court has delineated the following broad principles that ought to be followed in matters relating to compulsory retirement : - "11. The law relating to compulsory retirement has now crystallized into a definite principle, which could be broadly summarized thus: (i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having the regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more des....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... An order of removal also stands on the same footing as an order of dismissal, and involves the same consequences, the only difference between them being that while a servant who is dismissed is not eligible for re-appointment, one who is removed is. An order of retirement differs both from an order of dismissal and an order of removal, in that it is not a form of punishment prescribed by the rules, and involves no penal consequences, inasmuch as the person retired is entitled to pension proportionate to the period of service standing to his credit." [emphasis added] EXAMINATION AND ANALYSIS OF THE CASE ON HAND 26. We may now proceed to examine the facts of the case in hand in the light of the case laws discussed above in order to find out as to whether the order of compulsory retirement passed by the respondents in respect of the appellant was based on valid material and was in public interest. First, we propose to examine the personal file and character roll of the appellant. As per the material placed on record, the APARs of the appellant reflect that over the past several years, his integrity was being regularly assessed as "Beyond doubt" and this remained the positio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nor received back date. Closed dated 19.07.16 7 Sh. P.K. Bajaj, CIT E, Lucknow Sh. Jagat Pandey, 28/42, Civil Lines, Bareilly, U.P. Dated 29.06.16 ID issued dated 03.08.16 Reminder dated 09.09.16 letter received back undelivered till date. Closed dated 07.10.16. 8 Shri Pramod Bajaj, CIT (Exemption), Lucknow Sh. Ashish Rastogi, A 70, Gandhi Nagar, Prince Road Muradabad, U.P. ID issued dated 25.02.16. Reminder dated 11.05.16. ID Neither received back nor responded. Closed dated 29.08.16. 9 CAPT. P.K. Bajaj Addl. CIT Smt. Renu Bajaj W/o Capt P.K. Bajaj Letter dated 28.01.15 to CIT, Ajmer for providing information on case in court matter. A letter to Pr. CCIT, Jaipur for status report dated 20.01.16 & reminder dated 28.09.16 sent. Response of the Appellant S. No Name of officer Status 5. Facts as per petitioner 1 Sh. P.K. Bajaj Addl. CIT Sh. O.P. Jangre No explanation ever called for from petitioner in last 13 years in this regard. Shri S.K. Jangre was arrested by ACB/CBI on 12.12.15, and is under suspension. (Annexure No.A1). 2 Sh. P.K. Bajaj CIT (E), Lucknow Blank/ Closed dated 03.05.1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....xure No. A5) 28. As can be seen from the above, out of the aforesaid nine complaints, four complaints mentioned at Sr. Nos. 2, 6, 7 and 8 had already been closed by the department in the year 2016- 2017. With regard to the complaint listed at Sr. No.1, is stated to have been levelled by another officer of the department against the appellant, relating to harassment and interference in work. The Tribunal has noted the submission of the appellant, which has gone unrefuted that the Anti- Corruption Bureau of the Central Bureau of Investigation For short ' CBI' had at a later date, arrested the said officer on charges of corruption. The appellant has also stated in the remarks column that no explanation had ever been called for from him on the said complaint, status whereof is shown as "Under examination". In respect of the complaints at Sr. Nos. 3 and 4, the respondents have stated that they are "Under examination". In reply, the appellant has stated that the complaint at Sr. No.3, of the year 2016 was closed by the ADG (Vigilance)(NZ) on 10th February, 2016 and the complaint at Sr. No.4, made by a relative of an officer within the Department, was rejected because the complainant did....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e the case was never taken to trial for any findings to be returned by the Court on this aspect. In the above backdrop, there appears no justification for the respondents to have raised the spectre of a series of complaints received against the appellant during the course of his service that had weighed against him for compulsorily retiring him, more so, when these complaints were to the knowledge of the respondents and yet, his service record remained unblemished throughout. Nothing has been placed on record to show a sudden decline in the work conduct of the appellant so as to have compulsorily retired him. 31. We may now proceed to examine the background in which vigilance clearances were initially given to the appellant and subsequently withheld by the respondents. It is not in dispute that in the year 2013, the appellant had applied for the post of Member, ITAT and in the year 2014, the Selection Committee had placed him on the top of the list of 48 selected candidates. Based on the vigilance clearance issued by the department in August, 2013 and once again on 15th July 2015, the appellant was recommended by the respondents to the ACC for his appointment to the subject post. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al had passed an interim order on 2nd February, 2018 directing that the said proceedings will not come in the way of promotion, appointment and deputation prospects of the appellant. Regardless of the above directions, the respondents not only denied vigilance clearance to the appellant on 20th April, 2018 they went a step ahead and proceeded to place his name in the "Agreed List" i.e., the list of suspected officers. This act of the respondents was also assailed by the appellant before the Tribunal in O.A. No. 279 of 2018. Ultimately, both the captioned Original Applications were collectively decided by the Tribunal in favour of the appellant by a detailed judgement dated 6th March, 201, which has not been stayed by any superior Court. 35. Aggrieved by a separate Memo dated 30th January 2018 issued by the respondents on the basis of the aforesaid inspection of his office conducted on 29th and 30th November, 2017 calling for his explanation in respect of some orders passed by him in his judicial/quasi-judicial capacity as Commissioner of Income Tax (Exemption), the appellant had to file O.A. No.332 of 2018 that was decided by the Tribunal in his favour vide judgment dated 28th May....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat mentions three charges - one alleging that the appellant failed to seek permission from the department to purchase a flat in relation to the matrimonial dispute between him and his estranged wife and the second one is in respect of the allegation of bigamy levelled against him by his estranged wife. We have already noted earlier that during the course of the matrimonial dispute, the parties had arrived at a settlement and the flat that was agreed to be given to the wife, was not purchased by the appellant but by his brother, which fact is amply borne out from the documents placed on record. The matrimonial dispute between the parties stood closed on a decree of divorce being granted on the basis of mutual consent. That the respondents were also cognizant of the said fact, is apparent from the contents of O.M. dated 15th July, 2015 which records inter alia that the said allegations levelled by the wife had not been established. The third charge was relating to the appellant having attended Court hearings without sanctioned leave. However, the disciplinary proceedings initiated against the appellant on 17th July, 2019 were abandoned by the respondents on the order of compulsory r....