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TMI Blog2023 (3) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... and 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, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... urt on 15th November, 2017. 4. On 29th November, 2017, a vigilance inspection was carried out in the office of the appellant. Based on the said vigilance inspection, the respondents issued a show cause notice to him on 31st January, 2018. Ten days before that, on 21st January, 2018, the vigilance clearance earlier granted in favour of the appellant, was withheld by the respondents. Both the aforesaid orders were assailed by the appellant by filing separate Original Applications before the Tribunal. Initially, an interim order was passed by the Tribunal observing that the show cause notice issued by the respondents would not impede the appellant's consideration for appointment to the post of Member, ITAT. On 4th May 2018, another interim order was passed by the Tribunal, observing that withholding of the vigilance clearance of the appellant will not come in his way for appointment to the subject post. In the interregnum, on 11th April, 2018, the appellant was placed in the "Agreed List", which is a list of Gazetted Officers of suspect integrity prepared by the Department. Pertinently, a second Petition for Special Leave to Appeal filed by the respondents against the interim relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge memorandum issued to him wherein the High Court granted stay orders in his favour. While the said proceedings were still pending, the respondents proceeded to compulsorily retire the appellant on 27th September, 2019, which was about three months short of the date of his superannuation in January 2020. The list of promotions made to the post of Principal Commissioner was declared on 11.11.2019, by which date the appellant was no longer in the reckoning. 8. It may be noted here that the mechanism in place within the department for arriving at a conclusion as to who amongst the Group-A Officers in the CBDT deserve to be prematurely retired, starts with an assessment to be conducted by the Internal Committee that identifies and recommends the names of the officers and places it before the Review Committee. The next stage is before the Review Committee that includes the Chairman, CBDT and the Revenue Secretary as Members. If satisfied by the records and comments forwarded by the Internal Committee that the pre-mature retirement of a Group-A Officer is desirable in public interest, the Review Committee makes a recommendation to the Appointing Authority in this regard. The Appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersistent obstructions created by the respondents, who withheld his vigilance clearance without a valid reason and subsequently placed his name in the "Agreed List", followed by initiation of a disciplinary enquiry against him on baseless charges which was not taken to its logical conclusion, as he was prematurely retired in September, 2019. Lastly, it was urged that the High Court has completely overlooked the fact that all the Annual Performance Assessment Reports For short 'APAR' of the appellant over the past 30 years were blemishless. In fact, the appellant was graded as 'Outstanding' and his integrity was assessed as 'Beyond Doubt' for the immediately preceding 10 years' APARs, after he was promoted to the post of Commissioner, Income Tax in the year 2012. SUBMISSIONS MADE BY THE COUNSEL FOR THE UNION OF INDIA 11. Refuting the allegations levelled by the appellant and defending the impugned judgment, Mr. Sanjay Jain, learned Additional Solicitor General For short 'ASG' who appeared for the respondents - Union of India urged that the impugned judgment is a well-reasoned one and does not deserve interference; that the order of compulsory retirement was passed in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 55 years. 14. As is apparent from a perusal of the aforesaid provision, it takes in its fold two elements - the first one is the absolute right of the Government to retire an employee and the second is the requirement of meeting the condition of public interest for doing so. The provision also provides for a prior notice of at least three months to the outgoing employee and mandates that the said provision can be invoked to retire a government servant only after he has attained the age of 55 years. 15. We are conscious of the fact 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 have been laid down which are being elucidated hereinbelow. 16. The object of compulsory retirement of a government servant was highlighted by this Court in Allahabad Bank Officers' Association and Another vs. Allahabad Bank and Others 1996(4) SCC 504 in the following words: - "5. The power to compulsorily retire a government servant is one of the facets of the doctrine of pleasure incorp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. In such a case, the order can be said to have been passed in terms of the rule and, therefore, a different intention cannot be inferred. So also, if the statement in the order refers only to the assessment of his work and does not at the same time cast an aspersion on the conduct or character of the Government servant, then it will not be proper to hold that the order of compulsory retirement is in reality an order of punishment. Whether the statement in the order is stigmatic or not will have to be judged by adopting the test of how a reasonable person would read or understand it." [emphasis added] 17. In Union of India v. Col. J.N. Sinha and Another (1970) 2 SCC 458 it has been observed that : "Fundamental Rule 56(j) does not in terms require that any opportunity should be given to the concerned government servant to show cause against his compulsory retirement. It says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. If that authority bona f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bona fide and promote public interest, this Court observed that : - "25. The whole purpose of Fundamental Rule 56(j) is to weed out the worthless without the punitive extremes covered by Article 311 of the Constitution. But under the guise of 'public interest' if unlimited discretion is regarded acceptable for making an order of premature retirement, it will be the surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal. The exercise of power must be bona fide and promote public interest." 26. "An officer in continuous service for 14 years crossing the efficiency bar and reaching the maximum salary in the scale and with no adverse entries at least for five years immediately before the compulsory retirement cannot be compulsorily retired on the score that long years ago, his performance had been poor, although his superiors had allowed him to cross the efficiency bar without qualms." 20. In Ram Ekbal Sharma v. State of Bihar and Another (1990) 3 SCC 504 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o inculcate a sense of discipline in the service. But the Government, before taking the decision to retire a government employee compulsorily from service, has to consider the entire record of the government servant including the latest reports." 22. In State of Gujarat and Another vs. Suryakant Chunilal Shah (1999) 1 SCC 529, a case where the State Government had challenged the judgment of the Division Bench of the High Court of Gujarat that had held that the order of compulsory retirement passed against the respondent therein was bad, as there were no adverse entries in his Confidential Report and his integrity was not doubtful at any stage, this Court held thus : - "28. There being no material before the Review Committee, inasmuch as there were no adverse remarks in the character roll entries, the integrity was not doubted at any time, the character roll subsequent to the respondent's promotion to the post of Assistant Food Controller (Class II) were not available, it could not come to the conclusion that the respondent was a man of doubtful integrity nor could have anyone else come to the conclusion that the respondent was a fit person to be retired compulsorily from servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsatisfactory, has selectively taken into consideration the service record for certain years only while making extracts of those contents of the ACRs. There appears to be some discrepancy……….." [emphasis added] 25. In a recent judgment in the case of Nisha Priya Bhatia v. Union of India (2020) 13 SCC 56, 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". For drawing this distinction, reliance has been placed on the judgment in State of Bombay v. Saubhag Chand M. Doshi AIR 1957 SC 892, where a distinction was made between an order of dismissal and order of compulsory retirement in the following words : "9 … Under the rules, an order of dismissal is a punishment laid on a government servant, when it is found that he has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is noteworthy that the respondents have referred to nine complaints against the appellant, stated to be pending in the Vigilance Directorate that have been pithily summarized by the Tribunal in a tabulated format in para 30 of its judgment dated 6th March, 2019. Juxtaposed against the said tabulated statement of complaints listed by the respondents, is a separate tabulation of the response of the appellant to each of the said complaints. For ready reference, the two tables of contents are extracted below :- S. No . Name of officer Status 1 Sh. P.K. Bajaj Addl CIT, Range 6 (2), Mumbai Shri O.P. Jangre Charges of harassment & interference in work by subordinate officer Shri Jangre on Shri P.K. Bajaj Under Examination. 2 Sh. P.K. Bajaj, CIT E, Lucknow Closed dated 03.05.2018 3 Sh. P.K. Bajaj, CIT E, Lucknow Complaint made by Driving Training and Scientific Research Lucknow in January 2016 Under examination 4 Sh. P.K. Bajaj, CIT E, Lucknow Sh. Dharam Veer Kapil IFS Retd Dated 17.10.2017 ID issued dated 13.11.17. ID responded dt. 18.11.17 under examination 5 Sh. P.K. Bajaj, CIT E, Lucknow Sh. Balesh Singh, through PMOPG/E2017/0597 795 dated 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 08/04/16 Reminder dt. 11.05.16 ID neither responded nor received back undelivered till dated Closed dt./19.7.16. Fictitious/Pseudo anonymous complaint. Still connected files taken during inspection on 29.11.2017. 7 Sh. P.K. Bajaj CIT (Exemption), Lucknow Sh. Jagat Pandey, 28/42, Civil Lines, Bareilly, U.P. Dated 29.06.16 ID issued dated 03.08.16 Reminder dt. 09.09.16. ID letter received back undelivered. Closed/dt.07. 10.16. Fictitious/Pseudo anonymous complaint still connected files taken during inspection on 29.11.2017 8 Sh. P.K. 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 Dt/29.08.16 Fictitious/Pseudo anonymous complaint still connected files taken during inspection on 29.11.2017. 9 Sh. P.K. Bajaj Addl. CIT Smt. Renu Bajaj W/o Capt P.K. Bajaj Letter dt. 28.01.15 to CIT, Ajmer for providing information on case in court matter. A letter to Pr. CCIT Jaipur for status report dt. 20.1.16 & reminder dt. 28.09.16 sent Divorced on 31.05.2008. No query ever raised by DGIT (V) till date but copies of Hon'ble SC/HC orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a settlement arrived at between him and his estranged wife, vide Settlement Agreement dated 18th June, 2016 recorded by the learned Mediator appointed by the Delhi High Court Mediation and Conciliation Centre. The said Settlement Agreement was duly taken on record by the Division Bench of the High Court of Delhi vide order dated 14th July, 2016 passed in MAT. APP. (F.C.) Nos.148 of 2014, 34 of 2016 and 36 of 2016. Both the parties had agreed that they would take joint steps to get their marriage dissolved by filing a petition before the concerned Family Court. One of the terms and conditions of the Settlement was that the appellant would arrange a residential flat for his wife, which his brother had agreed to purchase in her name, as a one-time settlement towards all her claims of maintenance, alimony, stridhan, etc. This condition was subsequently complied with and is borne out from the Sale Document of the flat dated 3rd October, 2016 that records the fact that a sum of ₹ 6,00,000/- (Rupees six lakhs) was paid by the appellant's brother to the seller towards the sale price of the flat. 30. Once the parties had arrived at a settlement and a decree of divorce by mutual cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017, passed by the Tribunal was upheld by the High Court, on 30th May, 2017 and affirmed by this Court, vide order dated 15th November, 2017. 33. Undeterred by the aforesaid judicial orders, the respondents continued to withhold the vigilance clearance of the appellant, this time claiming that there were some adverse findings against him in an Inspection Report dated 20th April, 2018 stated to have been prepared on the basis of an inspection of the office of the appellant conducted on 29th and 30th November, 2017 which was done within a few days of this Court upholding the order dated 10th February, 2017 passed by the Tribunal, calling upon the respondents to place his adverse IB report before the Selection Committee, for it to take a view in the matter. It is rather ironical that the irregularities noticed by the respondents in the Inspection Report dated 20th April, 2018, that made them withhold the vigilance clearance of the appellant were to their knowledge ten days before and yet they had issued a letter dated 11th April, 2018, giving him vigilance clearance. 34. It is noteworthy that the appellant had challenged the proceedings initiated against him by the respondents on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of orders passed by the Tribunal and the High Court in favour of the appellant, the respondents elected to withhold his vigilance clearance, thereby compelling the appellant to file contempt petitions against the concerned officers for non-compliance of the orders passed. Both, the High Court as well as the Tribunal, issued notices for wilful disobedience of the orders passed. In the proceedings before the High Court, on the one hand, the respondents kept seeking adjournments on the ground that steps were being taken to forward the appellant's name to the ACC for being processed for his appointment as Member, ITAT, till as late as on 31st May 2019 on which date they were granted one last opportunity for making compliances and at their request, the matter was adjourned to 9th July 2019 and on the other hand, the respondents slapped the appellant with a Charge Memorandum dated 17th June 2019 and suspended him on 1st July, 2019. 37. Having regard to the fact that the respondents did not take the disciplinary proceedings initiated against the appellant to its logical conclusion and instead issued an order compulsorily retiring him, this Court does not deem it expedient to delve int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise of power that exceeds the parameters prescribed by law or is motivated on account of extraneous or irrelevant factors or is driven by malicious intent or is on the face of it, so patently arbitrary that it cannot withstand judicial scrutiny, must be struck down. In the instant case, though the appellant has levelled allegations of institutional bias and prejudice against the respondents, particularly against the then Chairman, CBDT who was a Member of the Review Committee, the said officer was not joined by the appellant as a party before the Tribunal or the High Court, for him to have had an opportunity to clarify his stand by filing a counter affidavit. Hence, these allegations cannot be looked into by this Court. 39. Dehors the aforesaid allegations of institutional bias and malice, having perused the material placed on record, we find merit in the other grounds taken by the appellant. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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