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TMI Blog1996 (4) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was, however, extended from time to time and the respondent continued on probation till March 31, 1985. By order dated May 24, 1985 the respondent was deemed to have completed his period of probation satisfactorily on March 31, 1985. By order dated June 3, 1985 he was confirmed in the post of Member, ITAT with effect from April 1, 1985. As member of the ITAT the respondent was posted at Allahabad, Bombay, Madras, Ahmedabad and Amritsar. Ever since his appointment as a member of the ITAT complaints were being received against the respondent from his colleagues, staff of the ITAT and members of the Bar. There was an adverse entry in the Annual Confidential Report (for short `ACR') of the respondent for the year 1983. The respondent submitted a representation against the said adverse remarks which came up for consideration before the Appointments Committee of the Cabinet (for short `ACC'). While rejecting the said representation the ACC observed that the respondent had completed the age of 55 years and that this was a fit case for the competent authority to consider whether action for his premature retirement from service should be initiated. Before initiating further action again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein it is provided that conditions of service of a member in respect of matters for which no provision is made in the Rules shall be the same as may, for the time being, be applicable to other employees of the Government of India of a corresponding status. The Tribunal has held that Rule 11, whereby the age of retirement is prescribed at 62 years, only provides an exception to the general rule and could not be construed to mean that it completely substitutes or supersedes the provisions of FR 56. The Tribunal has also rejected the contention urged on behalf of the respondent that the impugned order of compulsory retirement was penal in nature since the respondent has been retired before he completed 10 years of qualifying service which would have enabled him to draw pensionary benefits. The Tribunal has held that in the matter of pensionary benefits after retirement the position has to be adjudged as per the existing rules on the subject on the relevant date of retirement/premature retirement and that the respondent having put in nearly nine years of service on the date of the premature retirement has been paid service gratuity as admissible to him. The Tribunal has set aside th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r case after he has atained the age of fifty-five years; Provided that nothing in this clause shall apply to a Government servant referred to in clause (a) who entered Government service on or before 23rd July, 1966." 5. The respondent was appointed as member of the ITAT after he had attained the age of thirty five years. Action for his compulsory retirement under FR 56(j) could be taken on his attaining the age of fifty five years. The date of birth of the respondent being June 8, 1931, he had attained the age of 55 years on June 8, 1986. The order for his compulsory retirement was passed on January 28, 1987 after he had attained the age of fifty five years. 6. By OM dated January 5, 1978 instructions have been issued for guidance of the authorities concerned with regard to exercise of power to retire a Government employee prematurely under FR 56(j). The said instructions envisage review of the case of the employee covered by FR 56(j) by a Review Committee and the appropriate authority takes further action on the recommendation of the Review Committee. The said instructions also provide for submission of a representation by the government employee who has been served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kept in that Ministry it was the said ministry alone that could initiate the proposal for premature retirement of the respondent. The matter could reach the Cabinet Secretary only after the proposal was initiated by the Ministry of Law and Justice. It is difficult to appreciate how the Cabinet Secretary in the absence of the proposal from the Ministry of Law and Justice could have sent his recommendation to the ACC. It cannot, therefore, be said that there was non-compliance with the instructions laid down in the OM dated January 5, 1978 in the matter of submission of recommendations for the compulsory retirement of the respondent before A.C.C. and the order of compulsory retirement cannot be held to be vitiated on that account. 9. As regards the composition of the Representation Committee, the following provision is made in Appendix II to OM dated January 5, 1978 : "The Senior Selection Board shall make its recommendations to the Appointments Committee of the Cabinet for orders. For this purpose, the representations of the officers concerned may be sent by the Cadre Controlling Authority or the Administrative Ministry/Department to the Office of the Establishment Officer i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding sufficiency of material to justify the passing of the order of compulsory retirement, Shri V.R. Reddy, the learned Additional Solicitor General, has pointed out that ever since the appointment of the respondent as Judicial Member of the ITAT there were complaints against him on account of which he was transferred to various places but in spite of transfer the complaints continued. It was submitted that although his performance was not found satisfactory but a lenient view was taken and his probation period was extended from time to time and, at the same time, he was advised to improve his behaviour and that after granting six extensions in the period of probation the respondent was ultimately confirmed on the post of member of the ITAT with effect from April 1, 1985 by order dated June 3, 1985. The learned Additional Solicitor General has submitted that while issuing the order of confirmation, a separate letter of admonition dated May 29, 1985 was addressed by the Law Secretary to the Government of India to the respondent which reads as under : "Dear Shri Dhillon, I am glad to inform you that the competent authority has decided to confirm you as Judicial Member of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and his colleagues and the staff in the ITAT and his confirmation as member was delayed till April 1, 1985 and he was given six extensions in the period of probation. (ii) The remarks in the ACR of the year ending December, 31, 1985 show that there was no improvement in his behaviour as well as his performance. (iii) There was complaint about his conduct by his wife that he was living with another lady which fact was not disputed by him when he was given a hearing by the Law Minister on November 5, 1986. 15. Having regard to these circumstances, it is not possible to say that there was no sufficient material for the appropriate authority to form the requisite opinion that further retention of the respondent in service was not in public interest. 16. Shri Ujagar Singh, the learned senior counsel appearing for the respondent, has submitted that since the respondent was compulsorily retired before he completed 10 years of qualifying service, the order of compulsory retirement should be held to be an order of punishment. We are unable to agree. Under FR 56(j) an officer could be compulsorily retired on attaining the age of 50 years if he was appointed before he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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