9911796707
TMI Blog2024 (1) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... d several favours. It may be true that there is no proof about such demands. However, that would be a requirement in the case of disciplinary proceedings. While exercising power under FR 56(j), the Appointing Authority can take note of such allegations. Once the employee is fully granted of his retirement benefits, and is retired, a bit earlier, than in the usual course, the exercise referable to punitive action is not necessary. 13. In Ashok Kumar Aggarwal vs. Union of India & Anr. (OA No. 1835/2020), the Tribunal observed as under:- "38. The situation may not have existed for imposition of penalty. However, the gist of judgments of the Hon'ble Supreme court on the subject is to the effect that the overall record of the employee can certainly be taken into account. At the end of the day, it is the subjective satisfaction of the appointing authority, which in turn is not easily available for judicial review, compared to other administrative decisions. 39. A close scrutiny of the provisions under Para XXIV of the Constitution of India, in which Articles 308 to 314 occur; or the CCS (CCA) Rules or Fundamental Rules, would reveal that even while the several protections are accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated that another Non-Functional Upgradation ('NFU', for short) was given to him, in the year 2011 and he became the Director in the Directorate General of Anti-Dumping ('DGAD', for short) in the year 2014. He was posted as Regional Joint DGFT, Guwahati and Shillong in the year 2017. Thereafter, he was put in the Senior Administrative Grade ('SAG', for short) of ITS, at the level of Joint Secretary, on November 16, 2017 and was promoted on regular basis to SAG on February 27, 2018. 4. It is further stated that on May 10, 2018, the Appointing Authority of the petitioner passed an order retiring him from service, before he attained the age of superannuation, by invoking power under FR 56(j) of the Fundamental Rules ('Rules', for short). Pursuant thereto, a review petition submitted by the petitioner against the order passed by the respondent compulsorily retiring the petitioner was rejected by the respondent on June 13, 2019. As a result, OA was filed by the petitioner, challenging the order of premature retirement dated May 10, 2018, and order of rejection of the review, dated June 13, 2019. 5. It was the case of the petitioner before the Tribunal that his service record is wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21, 2014, specifically refers to said OMs in its appendix and marginal note. In fact, it is the cardinal rule with regard to Central Services Group A. 11. He submits that the above requirement is essential safeguard against arbitrary exercise of powers and the manner for taking a decision, having attributes of safeguards in favour of a Government Servant, and as such must be strictly followed. 12. It is his case that appointment of the petitioner to SAG was done by ACC and thus, it is the only authority competent to remove him. Logical corollary thereof, that any action having effect of removal cannot be undertaken by body different from appointing authority. 13. He further submits that law postulates that the recommendation for invocation of FR 56(j) has to be placed before the ACC. The requirement of "placing before the ACC" contemplates full disclosure, so as to enable it, to form a considered opinion. This is akin to sanctions required for certain actions. It has been held consistently that non-disclosure or not placing the matter before competent authority travels to the root of the matter and nullifies all the actions taken on the subject matter. [Ref. Swaran Singh Chand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quires application of mind by a specialised agency. Particular view qua errors of judgment or one understanding of deviance amounting to "questionable integrity" would be a nebulous feature if left to the "charge making body". Essential safeguard - therefore-pre ordains the consultation with CVC. Presence of CVO (a Joint Secretary level officer) in the Review Committee is not same as Consultation with CVC. The Tribunal has fallen into error in not appreciating this aspect of the matter despite the fact that the same has been dealt with extensively in oral arguments. 18. He submits that the Tribunal has failed to appreciate that the review for the purpose of invocation of FR 56(j), in law, is required to be done either at the age of 50 years or at 55 years and it must be completed six months prior to attainment of said age. In the instant case, the petitioner is the only ACC appointee in the list of officers who was cherry picked for the review at the age of 55.6 years without there being any adverse material. Thus, the proceedings adopted, described above, clearly indicate the malice in law, which accentuated such exercise. 19. It is his case that in the instant case, there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Jharkhand and others, (2010) 10 SCC 693 and Punjab State Power Corporation Ltd. and Ors. v. Hari Krishan Verma, (2015) 13 SCC 156. 23. He submits that the findings of the Tribunal in paragraph 9 of the impugned order is perverse inasmuch as no instance was raised before the Tribunal which could indicate 'deviance having financial implication' on the part of the petitioner holding sensitive posts and as such observation of the Tribunal travels beyond respondent's case. 24. It is his submission that the fact that the same officer viz, Alok Vardhan Chaturvedi has been part of all three Committees (First Review, the Representation Committee and Second Review), thus reasonable suspicion of bias has vitiated the process. The Departmental bias and malicious conduct of Alok Vardhan Chaturvedi, who formed part of three committees brings out a case of lack of good faith and malice against petitioner ex facie curiae [Ref. R.P. Kapoor v. Pratap Singh Kairon, 1965 SCC OnLine All 414]. 25. It is also his submission that the Tribunal has ignored the binding precedents relating to judicial review in cases of compulsory retirement/invocation of FR56(j) inasmuch as the law is clear that in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For this reason alone, all the subsequent Authorities, i.e. UPSC, ACC and Vigilance authorities in departmental hierarchy had not given any credence to it at the time of subsequent promotion of the petitioner. 30. In fact, in comprehensive representation dated August 30, 2018, the petitioner has from objective facts, exhibited falsity apparent in said note and the conduct of the officer himself inasmuch as he resorted to tampering with the records. Even the confidential emails dated October 31, 2018 and dated February 02, 2019, highlighting the Representation dated August 30, 2018, addressed by the petitioner have been ignored. The Second Review Committee has, instead of examining the objective facts presented by the petitioner to determine the truthfulness of the confidential note from the departmental records, summoned its maker behind petitioner's back. This approach tantamount to "taking of adverse evidence behind the back", of the petitioner. 31. The Representation Committee has, ignored this serious lapse in procedure adopted by the Second Review Committee and has mechanically put its seal of approval. Thereafter, the papers were to be laid before competent authority, i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch 21, 2014 and further supplemented by DoPT OM dated September 11, 2015 empowers an appropriate authority with an absolute right to retire, if it is necessary to do so in public interest, a government servant under FR 56(j) or Rule 48 (1) (b) of CCS (Pension) Rules, 1972 as the case may be. 36. He submits that in every review, the entire service record has to be considered. The expression 'service record' will take in all relevant records and hence the review should not be confined to consideration of the ACR / APAR dossier. The personal file of the officer may also contain valuable material. Similarly, the work and performance of the officer could also be assessed by looking into files dealt with by him or in any papers or reports prepared and submitted by him. Even un-communicated remarks in the ACRs / APARs may be taken into consideration. 37. He submits that DoPT has issued various instructions, from time to time, on the need for periodical review of the performance of Government servants with a view to ascertain whether a Government servant should be retained in service or retired from service in the public interest. Provisions in this regard are contained in FR 56 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 49 officers who belonged to ITS and were eligible for review, for their retention or otherwise in the Government service. The Review Committee chaired by the Commerce Secretary and comprising Additional Secretary in Department of Commerce, Joint Secretary & CVO and DGFT, reviewed the 49 officers belonging to the ITS and based on the review, the Committee recommended the retirement of 4 ITS officers, including the petitioner, under FR 56(j). The Committee noted that the continuation of the officers was not in public interest and considering the overall record of the officers, their general reputation among officers/stakeholders and their questionable integrity, recommended their retirement from service under the provisions of FR 56 (j). Along with remarks in the officer's APARs, the confidential note submitted by Director General of Anti-Dumping (DGAD) against the conduct of petitioner was taken on record for the said review. The said complaints received were assessed by the designated Review Committee under FR 56(i). Moreover, petitioner was retired from service on May 10, 2018 after the recommendations of the Review Committee were approved by the Commerce and Industry Minist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Shri Anup Wadhwan, former Commerce Secretary and Shri A. V. Chaturvedi, former DGFT; e) The Representation Committee on the first occasion also had Shri A.V. Chaturvedi, former DGFT, as the member, whereas he had been a member of the Review Committee." 45. He submits that in terms of OM dated March 21, 2014, and September 11, 2015, instructions have been laid down qua the composition of the Review Committees for different levels/categories of officials. It was specified therein that the Review Committee, as applicable in the instant case, may be headed by the Secretary of the concerned Ministry Department. It further specified that the Chief Vigilance Officer (who is a representative of CVC) should also be associated with the Review Committee. 46. He submits that in the instant case of the petitioner, the Review Committees on both the occasions were headed by the incumbent Commerce Secretary, i.e., Ms. Rita Teotia in the First Review Committee and Anup Wadhawan in the Second Review Committee. It is his case that Anup Wadhawan who was the member of the First Review Committee (as constituted with the approval of incumbent Commerce Secretary), on the first occasion, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the petitioner, the Representation Committee upheld the decision of the Second Review Committee and the petitioner was also informed of the rejection of his representation on June 13, 2019. 50. It is his submission that the composition of the Representation Committee has been notified by the DoPT, which comprises of Secretary, Department of Telecommunication, Joint Secretary, Cabinet Secretariat and a representative of the cadre controlling authority. During the first meeting of the Representation Committee, the cadre was represented by Alok Vardhan Chaturvedi, the DGFT and during the second meeting of the Representation Committee, the cadre was represented by Joint DGFT (HRD). To challenge the deliberations of the Representation Committee on the premise that the DGFT was the member, would tantamount to questioning the wisdom of two senior officers, designated by the DoPT, outside the Department of Commerce or DGFT. It would be a figment of imagination to presume that such senior officers, of the Representation Committee could be influenced by the presence of DGFT while upholding the premature retirement of a senior Government official. In fact, to the contrary, the Representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental proceedings, may also be taken into account. 55. He submits that it is only after obtaining the approval of Appropriate Appointing Authority, i.e., Commerce & Industry Minister (C&IM), they were retired from service with the direction that they shall be paid a sum equivalent to the amount of their pay plus allowances for a period of three months calculated at the same rate at which they were drawing before their premature retirement from service. 56. He submits that even in OM dated September 11, 2015, integrity is defined in paragraph 5, in terms of the observation of the Supreme Court in the case of Ramchandra Raju (supra). He also submits that reports of conduct unbecoming of a Government servant may also form basis for premature retirement. (Ref: State of Uttar Pradesh and Others v. Vijay Kumar Jain, (2002) 3 SCC 641. 57. It is his case that as per paragraph 7 of DoPT's OM as were relevant at that time, in the case of officers holding Group-'A' posts and in case of ACC appointees, a Review Committee headed by the Secretary of the concerned Ministry Department acts as a Cadre Controlling Authority. Thus, Commerce & Industry Minister (C&IM) being the Appointi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Shri Das as charged with insubordination. In other case, it has been reported that the officer approach in handling the cases has been unprofessional and questionable integrity. The Committee noted that the officer was recently promoted to the post of Additional DG. However, it was observed that as at the time of the promotion, the officer was technically clear from vigilance angle (in terms of extent instructions of DoP&T on granting vigilance clearance for promotion), the officer was promoted. The Committee recommended premature retirement of the officer in public interest, taking into account the questionable reputation and conduct of the officer." 62. It is his submission that in terms of Government of India (Allocation of Business) Rules, 1961 (as amended upto December 28, 2017) ('Business Rules', for short), the business of the Government of India is transacted in the Ministries, Departments, Secretariats, and officers specified in First Schedule. Accordingly, in terms of the First Schedule of Allocation of Business Rules, Commerce & Industry Minister is the cadre control authority of ITS. 63. That in terms of the Government of India (Transaction of Business) Rules, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner on May 10, 2018, under FR 56(j) is in accordance with the laid down guidelines of the DoPT and has been thoroughly examined and upheld by the Representation Committee followed by CAT, Principal Bench, Delhi and as such there arises no scope for any legal intervention on behalf of the petitioner whose service has been dispensed with for doubtful integrity and as such the writ petition needs to be dismissed. REJOINDER SUBMISSIONS 66. It has additionally been the case of Mr. Ghose that the respondent, in passing the order dated May 10, 2018 has acted arbitrarily in as much as there was no public interest in subjecting the petitioner with irreparable disadvantage- especially when his official credentials bespeaks of his integrity, competence and ability in performance of public duty assigned to him. In fact, no material existed prior to taking of the impugned decision, least the one justifying the compulsory retirement. At no point of time any material was disclosed which could relate to "compelling public interest" forming the bedrock of the Order dated May 10, 2018. 67. He submits that when first representation dated June 1, 2018, was preferred, the petitioner was entirely una ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical soundness of the petitioner. In fact, the approach adopted by the petitioner was most rational and pragmatic and was accepted by the authority concerned. Furthermore, the said communication relates to period when the petitioner was serving as a Director in Ministry of Finance and his service credential at places wherever he served has been found to be impressive enough to comport him as an asset to the government. 69. He further submits that for the first time in the Reply/Counter affidavit, it is stated that no provision of supplementary representation is contemplated in FR 56(j). It is plainly misconceived for FR 56(j) per se does not provide for mechanism to be adopted in the event of resort to grant of compulsory retirement and representation for reconsideration of such decisions. The procedure adopted to submit representation(s) and to enable the government to mitigate the injustice which may have occasioned in the worthy cases are prescribed in subsequent OMs which have been issued from time to time beginning from June 1969. None of the OMs dealing with the subject, restricts the submission of only one representation. In fact, it is bereft of any reason, if in non-adver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is a settled position of law that the order of compulsory retirement is not a punishment because the same does not wipe out service rendered. The restricted scope of judicial review lies in the sphere that such order being an executive act must not suffer from arbitrariness and the principles which govern the scope of judicial review in determining the legality of subjective satisfaction of executive action shall ipso jure apply in such cases. 74. It is his case that in the instant case there is no manifestation that authorities concerned have ever examined all the service records or other relevant materials at the time of alleged review. The mechanical exercise of power is apparent from alleged first stage itself. The OMs intended to give objectivity in exercise of discretion in such kind of case, clearly spelt out the period when officers can be subjected to review for the purpose of compulsory retirement. Reliance has also been placed upon the judgment of the Supreme Court in the case of The Barium Chemials Ltd. and Ors. v. The Company Law Board, AIR 1967 SC 295, to contend the same. 75. It is thus clear that unless respondent satisfactorily shows the cause to carry out re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alidity and sufficiency qua "integrity" can be formed. This principal impugned action is bad in law for formation of "bona fide opinion". 79. He submits that the law governing the field is clear on two counts: a) only President of India is vested with the powers to grant compulsory retirement under FR 56(j); b) the aid and advise tendered to the President must emanate from cabinet and given the case that the petitioner is SAG appointee, the aid and advice render to him must be that of ACC and not of any other authority inferior or different from ACC. If either of above stated conditions stands violated, the principal impugned order is without jurisdiction and is replete of its validity on that count alone. Reliance has been placed upon the judgment of the Supreme Court in V.C., Banaras Hindu University v. Shrikant, AIR 2006 SC 2304, to contend the same. 80. He submits that the clear principle which emanates from the said judgment is this that once an order is passed by an authority which has no power to take a decision then it is an order without jurisdiction and therefore the same is nullity. The doctrine of consequent act provides that all subsequent actions based thereon shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on can be construed to be a negative attribute or reflection on integrity. Further, the same APARs rate the petitioner as an outstanding officer throughout. The only document relied upon by the Second Review Committee is a confidential note which is again based on hearsay and the Author himself says 'there is nothing to substantiate it'. Further, the comprehensive representation of the petitioner, dated August 30, 2018, to the Representation Committee, which dealt squarely on the confidential note and the conduct of the Author of that note himself, has been deliberately not presented to the Representation Committee and again ignored by the Second Review Committee to protect the Author of that note and perpetuate a wrongful action against the petitioner. 83. He also submits that the Representation Committee, in its minutes clearly records that since the petitioner has been recently promoted to SAG with the approval of UPSC and ACC, the matter should be reconsidered and placed before the appropriate approving authority, hinting thereby to go back to ACC. The respondent has again failed to place the matter before the CVC and ACC. After remand of the case, the Second Review Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arent from the fact that the minutes of the Representation Committee was held up for over two months after the meeting. The acts of the respondent had become grave and untenable, because of the admitted fact that pressure and influence have been brought on the chairperson of the Representation Committee by way of sharing of information in confidence outside the representation committee. Therefore, presence of the same person in both the committees is a grave violation of administrative justice. In the instant case, instead of examining the records and forming an opinion thereon, an officer who has long left the department was consulted from back door to infuse his personal vendetta and the same is treated as a justification for impugned action. It is thus a clear case where the consideration for impugned action is extraneous. It is settled law that if a decision cannot be reached by excluding the extraneous material, then the decision shall be deemed to be "without any material". 87. He further submits that presence of the same person in both the Committees not only vitiates the proceedings but also carries the personal and departmental biases as is evident from the fact admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he frivolous nature of the grounds and refuting the unsubstantiated and hearsay allegation made by the then Additional Secretary, Inderjit Singh through a Confidential note dated March 30, 2017 and also bringing to the notice of the authorities the unethical and mischievous conduct of the author of the note itself. Though the Representation Committee met on September 06, 2018 to consider the representations, the Representation dated August 30, 2018 was deliberately and mischievously not placed before the said Representation Committee and as such not considered by the said Committee. The respondent, in its reply to the OA has admitted this fact and pleaded that there is no procedure to consider the supplementary representation and hence the representation dated August 30, 2018 was not considered at all by the Representation Committee. However, the Representation Committee even based on the first and preliminary representation of the petitioner and the service records of the petitioner, found it fit to remand the case of the petitioner to the review committee for reconsideration. Even after the case of the petitioner was remanded back to review committee by the representation committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to the said Grade with the approval of UPSC and ACC. Apart from the statutory requirement of approval of ACC for SAG and above officers and ACC appointees, Commerce Minister was not competent to approve the premature retirement of the petitioner on the very principle that when a higher authority approves the promotion and appointment, a lower authority cannot approve his premature retirement. 89. He also submits that as regards the averment of the respondent that the integrity of the petitioner has been commented upon over a period of time at different levels, it may be noted that the respondent has picked up stray and frivolous comments in ACRS/APARs of 1997- 98, 1998-99 as reflection on integrity. The remarks in the said ACRs quoted by the respondent, by no stretch of imagination can be construed as an adverse comment on the integrity. ACR of 1997-98, comments on the 'group orientation and policy orientation' of the petitioner while rating the officer as 'outstanding'. It is not understood, how it can be construed as a poor reflection on the integrity of the petitioner. ACR of 1998-99 says 'few complaints received but no substance found' and rates the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exercise by the respondent. 91. He further submits that the CVC guideline does not even permit to take cognizance of such complaints. But the respondent found it fit to rely on such a note to take the extreme step of easing out the petitioner without even taking note of the representation and the issues raised by the petitioner therein. As far as the contents of the said note and allegations levelled therein are concerned, the petitioner had comprehensively explained and refuted all allegations in his comprehensive representation dated August 30, 2018. It was clearly explained in the said representation that it was the duty and responsibility of the petitioner, as a part of quasi-judicial procedure, to examine all submissions made by different parties and bring all alternatives and options before the Designated Authority and that is what was precisely done. But the said author of the confidential note, being new to the department, failed to appreciate the process and on the contrary resorted to unethical practice of alteration of records and intimidating the officer. 92. He submits that all these facts were brought out in the comprehensive representation dated August 30, 2018 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecifying what was the deviation. In fact, all past records of the petitioner are 'Outstanding' with very high grades and officers after officers have lauded the analytical skills and decision-making ability of the petitioner. The petitioner had been all along held to be an asset to the organisation. 94. He submits the following qua the minutes of the Second Review Committee minutes:- I. The Committee noted that intent and conduct of the petitioner while dealing with files as well as with clients, has been obstructive and questionable- Nothing in any of the APARs of the petitioner in the entire over 25 years career shows the same. In fact, all the APARs/ACRs, record in glowing terms, the constructive and positive attitude of the petitioner. A complete statement of all ACRs/APARs of over 20 years was placed before the Tribunal showing high appreciation of the dealings of the petitioner. Therefore, it is not known wherefrom these observations were picked up by the review committee. II. The petitioner does not hold a good reputation in terms of integrity. This fact is borne out by entries in his APAR dossier- None of the APARs of last 25 years indicate any negative attribute on In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional DG. However, it was observed that at the time of the officer was technically clear from vigilance angle- The confidential note was of March 30, 2017 and promotion order to SAG was issued with approval of UPSC and ACC on November 16, 2017. If there was such a serious charge against the petitioner as has been brought out in the Review committee note, it is not understood what prevented the Department to conduct an enquiry and apprise the CVC, UPSC and ACC. While the petitioner was found to be fit by UPSC and ACC headed by Prime Minister, for promotion to SAG based on seniority and fitness, within few months the Committee headed by a secretary finds the petitioner not fit to continue in service. 95. So, on the basis of the above submissions, the petitioner seeks to set aside the impugned order passed by the Tribunal. ANALYSIS 96. Having heard the learned counsel for the parties, the broad submissions of Mr. Ghose challenging the impugned order, are the following:- i. Approval of the ACC is a precondition to invoke FR 56 (j) against the officers of SAG and above; ii. The above position has not been subjected to any change, inasmuch as, the OM dated March 21, 2014, sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xi. The order of the Tribunal is contrary to the settled position of law in terms of the judgments referred by the petitioner before the Tribunal; 97. At the outset, it may be stated here that in substance the grievance of the petitioner is with regard to the action taken by the respondent compulsorily retiring the petitioner on May 10, 2018 by invoking FR 56 (j). 98. Though several OMs have been relied upon by the counsel for the parties it may be stated here that on the relevant date, i.e., on May 10, 2018, it was the OM dated September 11, 2015, which was holding the field as regards to principles governing the invocation of FR 56 (j). The said OM specifically refers to the judgment of the Supreme Court in the case of Umedbhai M. Patel (supra), to enumerate circumstances under which an officer can be compulsorily retired under FR 56 (j). 99. Suffice to state, the petitioner being an ACC appointee, the Review Committee as contemplated under the OM of 2015, was required to be headed by the Secretary of the concerned Ministry/ Department, as a Cadre Controlling Authority. In this case, as the petitioner was working under DGFT, it was the Secretary, Ministry of Commerce, who was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record shows that CVO was indeed part of the Review Committee which took the decision to compulsory retire the petitioner. Hence, this plea of Mr. Ghose, needs to be rejected. 103. It is also one of the submissions of Mr. Ghose that the petitioner being appointed by the ACC, the order of prematurely retiring the petitioner could have only been passed after seeking the approval of the ACC. The said plea is without any merit, inasmuch as, Mr. Ravi Prakash is right in submitting that in terms of the Government of India (Transaction of Business) Rules, 1961, ACC is consulted only for appointment, empanelment and upgradation of the officer and not for retirement of the officer. Moreover, in terms of OM of 2015, in the case of officers holding Group-A post, and in respect of ACC appointees, it is the Review Committee, which may be headed by a Secretary of the concerned ministry/ department as cadre controlling authority, has to pass an order of compulsory retirement. Suffice to state, it is not the case of the petitioner that the Review Committee has not been headed by the secretary, which passed the order of compulsory retirement. 104. One of the pleas of Mr. Ghose is that the Second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as under for ready reference:- "His overall approach in handling a recent case was unprofessional, with calculations and conclusions varying several times. During the processing of this case, he tried to push for some principles, which, as per existing rules/conventions of DGAD, are not allowable, and have not been allowed in the past in any other case. Yesterday (29.03.2017), some of the representatives of domestic industry applicants in this case met me and made serious allegations against Shri Das, including demand of some favours in return for doing something in this case. However, considering the nature of allegations, they were reluctant to give written complaint regarding this. Notwithstanding that there is no evidence in support of the allegations, and not even a written complaint, considering various aspects, and the way Sh. Das has been handling this case in the interest of organization, and in public interest, it appears desirable that not only he is disassociated from this cases investigations, but immediately transferred out of DGAD and posted in some non sensitive post. I understand Sh. Das is one of the longest serving officers in DGAD." 109. In that sense, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendation and then placing it before the Competent Authority for appropriate action. On re-consideration, the Second Review Committee, on May 03, 2019, had referred to the representation dated June 1, 2018 made by the petitioner before the Representation Committee, wherein it has been stated as under: "a. The extant instructions of DoPT provide that an officer could be compulsorily retired in public interest, after a review under FR 56 (j), on attaining the age of 50 years. While he attained the age of 50 years in 2013, he has been retired in 2018, after having attained the age of 55 years, without any jurisdiction to do so; b. He has an excellent and unblemished service record with no adverse material against him ever; c. He was the first Indian Trade Service officer to join the prestigious Post Graduate Diploma Program in Public Policy and Management at IIM Bangalore in 1992 and that he has written many thesis and research papers; d. His supervising officers have consistently held him as an extremely reliable and knowledgeable officer with outstanding ability and leadership qualities; e. He has done some highly appreciated work like initiation of the process of debates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such, integrity of an officer has to be above board. Therefore, it decided in public interest to reaffirm the earlier decision of recommending the compulsory retirement of the petitioner. 117. So, the plea of Mr. Ghose, of non-consideration of the representations, more particularly, representation dated August 30, 2018, wherein the petitioner has, in paragraphs 15 to 17 of the same, which we reproduce as under, refuted the allegations made against him by Inderjit Singh, is not tenable. More so, when the Second Review Committee has also corroborated the contents of the confidential note by examining the file of the DGAD:- "15. The third issue raised by AS & DA in his note was certain alleged verbal complaint by some interested party in the case regarding demand of favour by the undersigned. In this connection it is humbly submitted that anti-dumping investigations are highly adversarial in nature where two groups having diverse interests vehemently contest. The loosing group has a tendency to feel aggrieved and sometimes comes out with wild allegations, either to threaten or pressurise or intimidate the officers, or to derail the investigations. It happens very often and seaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught on him and succumbed to a well calculated strategy of the industry, to remove the inconvenient officer, the plea of non- consideration of the comprehensive representation rendering the order dated May 10, 2018, as illegal and arbitrary, cannot be accepted, specially, when no prejudice has been caused to the petitioner. 119. It is also pertinent to highlight here that the Second Review Committee on re-consideration of the case of the petitioner, has even interacted with AS&DA (Inderjit Singh), to understand the contents referred to in his confidential note, before reiterating its decision of compulsorily retiring the petitioner. 120. It is also the plea of Mr. Ghose, that the interaction with AS&DA (Inderjit Singh) by the Second Review Committee was done at the back of the petitioner. This plea is also not appealing to us, for the simple reason, that to compulsory retire a person invoking FR 56(j), is not a punishment and as such no stigma is attached to it. In that sense, as per the settled position of law, the rigorous of a departmental inquiry and the principles of natural justice, were not required to be conformed with, by giving hearing to the petitioner. 121. At the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge of premature retirement to be 50. Rule 16(3), after its substitution, reads as under: - 16 (3) The Central Government may, in consultation with the State Government concerned and after giving a member of the Service at least three months, previous notice in writing, or three months pay and allowance in lieu of such notice, require that member to retire in public interest from service on the date on which such member completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice. Therefore, the matter regarding pre-mature retirement of officers of the Delhi Higher Judicial Service who have completed 30 years of qualifying service or attained 50 years of age, has to be reviewed in the light of Rule 16(3) of the Rules of 1958 quoted above. 28. Similarly, in case of officer of Delhi Judicial Service, Rule 33 of Delhi Judicial Service Rules, 1970 provides that in respect of all such matters regarding the conditions of service for which No. provision or insufficient provision has been made in the Rules, the Rules or orders for the time being in force, and applicable to Government servants holding corresponding p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttee, the cadre was represented by the Joint DGFT. In that sense, the presence of Alok Vardhan Chaturvedi was necessary as a representative of ITS. In any case, presence of Alok Vardhan Chaturvedi cannot be said to have vitiated the process for the reason that the final decision has been taken by the Minister as a delegate of the President. Moreover, every committee like First Review Committee, the Representation Committee and the Second Review Committee consisted of other officers, who are higher in status and as such no allegations have been made against them to state that Alok Vardhan Chaturvedi has influenced them to take a decision against the petitioner herein and hence, this plea of Mr. Ghose is also liable to be rejected. 124. Mr. Ghose has relied upon the judgment of the Allahabad High Court in the case of R.P. Kapoor (supra), to contend that departmental bias and malicious conduct of Alok Vardhan Chaturvedi, brings out a case of lack of good faith and malice against petitioner ex facie curiae. Suffice to state that the said judgment was delivered while disposing of a criminal misc. application filed under Section 476 of the Cr.P.C. 1898 (Old, Criminal Procedure Code) by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement are totally different. In case of promotion, the record pertaining to last five years before the actual date of promotion is taken into consideration. Whereas, in the case of compulsory retirement, the same entails examination of the complete service record of the officer concerned. 127. That apart, the law in this regard is well settled. The Supreme Court in the case of Central Industrial Security Force v. Om Prakash, (2022) 5 SCC 100, has in paragraphs 12 to 15 held as under: "12. In the judgment reported as Rajasthan SRTC v. Babu Lal Jangir [Rajasthan SRTC v. Babu Lal Jangir, (2013) 10 SCC 551 : (2014) 2 SCC (L&S) 219] , the High Court had taken into consideration adverse entries for the period 12 years prior to premature retirement. This Court held that Brij Mohan Singh Chopra v. State of Punjab [Brij Mohan Singh Chopra v. State of Punjab, (1987) 2 SCC 188] was overruled only on the second proposition that an order of compulsory retirement is required to be passed after complying with the principles of natural justice. This Court also considered the "washed-off theory" i.e. the remarks would be wiped off on account of such record being of remote past. Reliance was plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of premature retirement of the government servant." 13. There are numerous other judgments upholding the orders of premature retirement of judicial officers inter alia on the ground that the judicial service is not akin to other services. A person discharging judicial duties acts on behalf of the State in discharge of its sovereign functions. Dispensation of justice is not only an onerous duty but has been considered as discharge of a pious duty, therefore, it is a very serious matter. This Court in Ram Murti Yadav v. State of U.P. [Ram Murti Yadav v. State of U.P., (2020) 1 SCC 801 : (2020) 1 SCC (L&S) 245] held as under : (SCC p. 805, para 6) "6. ... 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 mala fides, 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." 14. Thus, we find that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s digging into the past." 16. Reference may also be made to the judgment of this Court in Pyare Mohan Lal [Pyare Mohan Lal v. State of Jharkhand, (2010) 10 SCC 693 : (2011) 1 SCC (L&S) 550] in which while dealing with the concept of washed-off theory, this Court after dealing with the entire case law on the subject held as follows : (SCC pp. 704-706, paras 24 & 29) "24. 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 assess his suitability taking into consideration his "entire service record". *** 29. The law requires the authority to consider the "entire service record" of the employee while assessing whether he can be given compulsory retirement irrespective of the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1; 4) Smt. S. R. Venkataraman (supra); 5) Umedbhai M. Patel (supra); 6) D. Ramaswami v. State of Tamil Nadu, (1982) 1 SCC 510; 7) Saroj Kumar Dutta v. Union of India and others, 2014 SCC OnLine Cal 5034; 8) Swaran Singh Chand (supra); 9) Baidyanath Mahapatra v. State of Orissa and another, (1989) 4 SCC 664; 10) A.K. Kraipak and others v. Union of India and others, (1969) 2 SCC 262; 11) State of Orissa v. Dr. (Miss) Binapani Dei and others, (1967) 2 SCR 625; 12) S. Ramachandra Raju (supra); 13) Amar Nath Chowdhury v. Braithwaite and Co. Ltd. and others, (2002) 2 SCC 290; and 14) M.S. Bindra (supra). 130. Insofar as the judgment in Dev Dutt (supra) is concerned, it is the case wherein the Supreme Court has inter alia held that all types of gradings, whether 'very good', 'good', 'average' or 'poor', have to be communicated to an employee, so that an employee concerned gets an opportunity of making a representation for improvement of his grading. No doubt, this is a settled position of law. However, in the present case, it is an admitted fact that the petitioner herein, was communicated of his adverse remarks in the APAR of 2014-2015. However, the petitioner chos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Supreme Court that it is not necessary to examine the question of malice in law if a discretionary power has been exercised for an unauthorised purpose. No doubt, it is a settled position of law that discretionary powers should not be used for unauthorized purposes, however, it is not the case here that the respondent has used its powers for an unauthorized purpose. This we say so, as already concluded above, that the respondent has acted in conformity with the DoPT instructions as laid down in the OMs of 2014 and 2015, which were existing at the time when the decision was taken by the respondent to compulsory retire the petitioner. Thus, the said judgment shall have no applicability. 136. Reliance has also been placed upon the judgment of the Supreme Court in the case of Umedbhai M. Patel (supra) to submit that if an order is passed compulsorily retiring an employee, it should not be based on extraneous consideration and if it is found that the order is based on extraneous considerations, the same can be set aside. Insofar, as the plea of extraneous consideration in the facts of the present case is concerned, we are unable to accept such a plea, for the reason that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, compulsorily retiring the petitioner is not an arbitrary order, inasmuch as, the same has been passed in accordance with the tenets of law i.e., in line with the DoPT' s instructions. Hence, this judgment shall also not help the case of the petitioner. 140. Similarly, reliance has been placed on the judgment of the Supreme Court in Baidyanath Mahapatra (supra), wherein it has been held that if a government servant is promoted to a higher post on the basis of merits and selection, adverse entries, if any, contained in his service records lose their significance. As already noted above, in view of our conclusion at paragraphs 122 and 123 above, the said judgment shall also have no applicability. 141. Insofar as the judgment in the case of S. Ramachandra Raju (supra) is concerned, it is the case wherein the Supreme Court was dealing with the facts wherein the representation of the petitioner therein, was rejected without going into the allegations made by the petitioner in his representation and on that basis the order of compulsory retirement was set aside. Suffice to state, in the present case, the First Review Committee, the Representation Committee, as well as the Second Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpulsorily retired, did not contain any such stipulation which provided for consultation with CVC. Hence, to state that respondent has acted in an arbitrary manner with the aid of aforesaid judgment does not look appealing and hence, it will not come to the aid of the petitioner. 145. Similarly, reliance has also been placed on the judgment of the Supreme Court in the case of Justice R. A. Mehta (Retired) and others (supra) to define the expression 'consultation' in order to contend that the respondent did not have any 'consultation' with CVC and as such the order passed by the respondent compulsorily retiring the petitioner is bad in law. As we have already held that 'consultation' with CVC was not mandatory in terms of the instructions as laid down in OMs of 2014 and 2015, this judgment will also not help the case of the petitioner. 146. Reliance is also placed on the judgment of the Supreme Court in the case of Mohinder Singh Gill and Ors. (supra) to contend that in the O.A., it was the case of the respondent that the petitioner's integrity was 'not above board', whereas, in the present petition, it is the case of the respondent that the petitioner had the poor reputation in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also been placed on the judgment of the Supreme Court in the case of J.N. Sinha & Ors. (supra) to contend that the judgment in J.N. Sinha & Ors. (supra) was predicated on assumption that compulsory retirement does not involve civil consequences, however, it is open to an aggrieved party to contend that the opinion formed by the government is based on collateral grounds or it is an arbitrary decision. He contends that this judgment has been followed by the Supreme Court in the case of Suryakant Chunilal Shah (supra) wherein it has been held that in cases of compulsorily retirement, the judicial scrutiny does not get excluded altogether and High Court(s) or the Supreme Court can very well interfere in such matters, if they are satisfied that an order passed is:- (a) malafide, (b) based on no evidence or (c) is arbitrary. More particularly, it has also been held that if a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks also lose their sting. Though we agree that the aforesaid propositions are established principles of law, however, in the present case as held above, the respondent has considered the entire service record of the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of V.C., Banaras Hindu University (supra) to contend that the law governing the field of compulsorily retirement is clear on two accounts (a) only President of India is vested with powers to grant compulsory retirement under FR 56 (j) and (b) the aid and advise tendered to President must emanate from cabinet and given the case that the petitioner is SAG appointee, the aid and advise rendered to him must have come from ACC and not of any other authority inferior or different from ACC. Therefore, once an order is passed by an authority which has no power to take a decision then it is an order without jurisdiction, therefore, the same is nullity. Suffice to state, as already held in paragraph 103 above that ACC is consulted only for appointment, empanelment and upgradation of the officer and not for his/her retirement. Therefore, this judgment shall not be applicable in the facts of the present case. 153. Reliance has also been placed on the judgment of the Supreme Court in the case of A.K. Kraipak and others (supra), wherein, it has been held by the Supreme Court that if the purpose of rules of natural justice is to prevent miscarriage of justice then such rules should be made appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
