2023 (3) TMI 384 - SC - Indian Laws

Compulsorily Retirement of Members of Income Tax Appellate Tribunal (ITAT) - Various unproven allegation of different kinds - An allegation made by the appellant’s ex-wife for bigamy - Wilful disobedience of the order - Communication of decision of the President of India to compulsorily retire him, in exercise of powers conferred under Rule 56(j) of the Fundamental Rules - HELD THAT:- The scope of judicial review in respect of an order of compulsory retirement from the service, is fairly limited. The law relating to compulsory retirement has been the subject matter of discussion in a number of cases where certain settled legal principles.

In Ram Ekbal Sharma v. State of Bihar and Another [1990 (4) TMI 309 - SUPREME COURT] it was observed that in order to find out whether an order of compulsory retirement is based on any misconduct of the government servant or the said order has been made bona fide, without any oblique or extraneous purpose, the veil can be lifted.

In Nand Kumar Verma v. State of Jharkhand and Others [2012 (2) TMI 727 - SUPREME COURT] 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.

In a recent judgment in the case of Nisha Priya Bhatia v. Union of India [2020 (4) TMI 890 - SUPREME COURT], confronted with the question as to whether action taken under Rule 135 of the Research and Analysis Wing (Recruitment Cadre and Service) Rules, 1975 is in the nature of “a penalty or a dismissal clothed as compulsory retirement” so as to attract Article 311 of the Constitution of India, this Court has held that “the real test for this examination is to see whether the order of compulsory retirement is occasioned by the concern of unsuitability or as a punishment for misconduct”.

In the present case, 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 position till as late as 31st July, 2019, when his work performance was assessed for the period from 1st April, 2018 to 31st March, 2019 and found to be upto the mark. In his APARs for the past one decade, till the period just prior to the order of his premature retirement, the respondents were consistently grading the appellant as “Outstanding”. No adverse entries were made by his superiors in the APARs of the appellant insofar as his work performance was concerned. No aspersion was cast either on his conduct or character during all this period. As per the service records, his efficiency and integrity remained unimpeachable throughout his career. The inference drawn from the above is that the appellant’s service record being impeccable could not have been a factor that went against him for the respondents to have compulsorily retired him.

Once the parties had arrived at a settlement and a decree of divorce by mutual consent was passed by the concerned Court, the allegations of bigamy etc. levelled by the appellant’s wife loses significance since the case was never taken to trial for any findings to be returned by the Court on this aspect - 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.

It is noticed that though FR 56(j) contemplates that the respondents have an absolute right to retire a government servant in public interest and such an order could have been passed against the appellant any time after he had attained the age of fifty years, the respondents did not take any such decision till the very fag end of his career. The impugned order of compulsory retirement was passed in this case on 27th September, 2019 whereas the appellant was to superannuate in ordinary course in January, 2020. There appears an apparent contradiction in the approach of the respondents who had till as late as in July, 2019 continued to grade the appellant as ‘Outstanding’ and had assessed his integrity as ‘Beyond doubt’ - The impugned order passed by the respondents does not pass muster as it fails to satisfy the underlying test of serving the interest of the public.

It is deemed appropriate to reverse the impugned judgment dated 31st May, 2022 and quash and set aside the order dated 27th September, 2019 passed by the respondents, compulsorily retiring the appellant. Resultantly, the adverse consequences if any, flowing from the said order of compulsory retirement imposed on the appellant, are also set aside - Appeal allowed.