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TMI Blog2024 (1) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... y column of the petitioner, that there is a room for improvement . Suffice to state, this remark was also disclosed to the petitioner, however, no representation was submitted against the same. The petitioner herein has been given fair opportunity to file his representation against the order of compulsory retirement. Moreover, the First Review Committee, the Representation Committee as well as the Second Review Committee have gone through the entire service record of the petitioner. In fact, when the representation dated June 1, 2018, was in depth examined by the respondent, it remanded the case of the petitioner back to the review committee for a fresh consideration and only thereafter, the Second Review Committee, came to the conclusion that the service of the petitioner, was no more required. The aforesaid judgments relied upon by petitioner shall have no applicability in the facts of the present case and as such, not help the case of the petitioner. There are no merit in the present petition. The impugned order of the Tribunal does not require any interference. The writ petition is dismissed. - HON'BLE MR. JUSTICE V. KAMESWAR RAO AND HON'BLE MR. JUSTICE AN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to continue the employee in service. While holding of inquiry into the allegations of misconduct, is the norm that can be dispensed with in exceptional cases covered by the 2nd proviso to Article 311 (2) (b) and the corresponding CCS (CCA) Rules. 40. The hardship caused to the civil servants on account of dismissal from service after an inquiry under Rule 14 of the CCS (CCA) Rules or by invoking the provisions akin to Article 311 (2), is phenomenal, if not colossal. The pension, which is almost in the form of estate, stands withdrawn. Other attendant benefits, which are provided as a reward for the service rendered by the employee for major part of his life are forfeited. In contrast, the compulsory retirement under FR 56(j) would have the effect of just advancing the age of retirement and nothing more. The State feels that it would be safer for it, in case the employee is not on its rolls for the remaining part of his service. Roughly stated the major punishments such as dismissal and removal are almost lethal weapons, whereas compulsory retirement is just a tranquilizer. Obviously for that reason, the Hon ble Supreme Court had reduced the interference with such orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was absolutely no justification or basis for the respondent herein, to invoke the power under FR 56(j) of the Rules, against him. The order of premature retirement was passed by doubting his integrity and such a step could have been taken, only in consultation with CVC and in the instant case, no consultation was undertaken with CVC. 7. Whereas, it was the case of the respondent before the Tribunal that as part of cleansing the Administration of Anti-dumping Department and for ensuring transparency, a high level Committee was constituted to review the cases of various officers, who had crossed the age of 50 years. The Committee examined the relevant service records of various officers and recommended the case of the petitioner, for premature retirement. 8. It was also the case of the respondent that several observations were made by the concerned authorities at different points of time in the ACRs of the petitioner, doubting his integrity and expressing discontent about his functioning and as the petitioner was occupying a very senior and sensitive position in the department, any small deviation from the prescribed norms is bound to have its impact on the functioning o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r otherwise. Despite orders passed by the Tribunal, the records were not produced and unfortunately, the Tribunal has not adverted to this aspect of the matter despite extensive arguments made on behalf of the petitioner herein. 15. He submits that in case the action proposed under FR56(j) relates to lack of integrity , CVC must be consulted. OM dated May 10, 1974 specifically requires the consultation with CVC in case action is proposed to be taken for want of integrity. He has taken the aid of the judgment of the Supreme Court in the case of State of Gujarat and Another v. Justice R. A. Mehta (Retired) and others, (2013) 3 SCC 1 , to contend that the expression consultation has been subjected to judicial attention and there is judicial consensus to mean, the following:- .Ordinarily, consultation means a free and fair discussion on a particular subject, revealing all material that the parties possess, in relation to each other, and then arriving at a decision. However, in a situation where one of the consultees has primacy of opinion under the statute, either specifically contained in a statutory provision, or by way of implication, consultation may mean concurrenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner does not hold good reputation in terms of integrity as born out from APAR dossier is factually incorrect. The gist of all APARs shows that at no point of time the petitioner is levelled with remarks of the kind imputed upon him. Thus, if it is assumed that the basis for invocation of FR 56(j) is questionable integrity, and the same is derived from APARs, and if APARs are found to be absent with such remarks then the impugned order is without any basis worthy of judicial acceptance. In fact, some of the APARs specially records that the integrity of the petitioner as integrity above board or nothing adverse . 20. He submits that the recent promotion granted to petitioner with ACC approval, followed by the impugned order of compulsory retirement on non-existent grounds makes the order dated May 10, 2018, bad in law. It is settled law that once promotion is granted then absent any new material, the compulsory retirement cannot be inflicted. [ Ref. M. S. Bindra v. Union of India and others, (1998) 7 SCC 310 ]. 21. He further submits that in the instant case, there is no remark in recent APARs of the petitioner (even in past as well), which ails the impeccable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Smt. S. R. Venkataraman v. Union of India and another, (1979) 2 SCC 491]. 26. He submits that the petitioner has preferred four representations on June 1, 2018, July 24, 2018, August 3, 2018, August 30, 2018 against the order dated May 10, 2018, whereby he was made to compulsorily retired. The occasion for such representations arose as the petitioner was unaware of grounds leading to order dated May 10, 2018. Various materials based on RTI Replies were produced to exhibit arbitrary and colorable decision making which culminated into order dated May 10, 2018. 27. He also submits that the Representation Committee met on September 07, 2018, but the said committee has foreclosed its wisdom as the comprehensive representation dated August 30, 2018 was deliberately not placed before it by the respondent and only the first representation dated June 1, 2018, which was preferred when petitioner was not aware of grounds of compulsory retirement, was considered. This approach is ex facie bad in law as the comprehensive representation dated August 30, 2018, which refuted all allegations, was not even looked at, let alone considered. Fairness and justness to which law presume the Gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich could be stated to be warranting invocation of FR 56(j) and seemingly conscious of the same, the respondent has relied upon an unknown document beyond records, described to be confidential note dated March 31, 2017 allegedly made by one Inderjit Singh, (who had a very short tenure as DGAD). The contents of note, if taken at face value, do not justify as to how hearsay can have place, without there being any material. Albeit, contextual fact of the matter is that the said officer had tried to interfere in process of investigation undertaken by the petitioner and the petitioner refused to accede to act in the manner which goes against rules. In fact, the same officer, has at later stage, left with no choice, but signed on final findings prepared by the petitioner as per the Rules. Be that as it may, instead of examining the truthfulness of the said note, the said officer was called upon for interaction even before the Review Committee behind the petitioner s back. It is his submission that it is a serious infirmity and what could not have been brought to fore against petitioner, has been done by verbal impressions in his absence. In fact, Counter Affidavit filed before this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out by each administrative authority. 38. He further submits that the instructions issued by the DoPT have laid down the composition of the Review Committee to undertake review of officials at different levels as well as the composition of Representation Committee, to address representations from those adversely affected by review. The instructions on the subject have been consolidated in DoPT OM dated March 21, 2014, which is further supplemented by DoPT OM dated September 11, 2015 and DoPT OM dated August 28, 2020. 39. He submits that DoPT has in its OM dated March 21, 2014 issued, updated and consolidated instructions for review of Government servants under FR56(j), FR56(1) and rule 48 of the Rules. This was supplemented by the DoPT OM dated September 11, 2015 wherein, inter alia, the DoPT had also laid down 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of premature retirement and the same was taken up by the Representation Committee chaired by Ms. Aruna Sundararajan, Secretary (Telecommunication) and comprising Ms. Rachna Shah, Joint Secretary, Cabinet Secretariat and DGFT, which remanded his case back for re-consideration by the Review Committee. The re- consideration of the review of petitioner was done and the Committee reiterated its decision to prematurely retire him, after due diligence and taking into consideration the factor that his continuation at such a high level of decision making would be injurious to the public interest. The Review Committee also interacted with the former DGAD who espoused about the unethical conduct of the petitioner as conveyed by him earlier through a confidential note, while holding the charge of DGAD. 43. He further submits that the Representation Committee took up the re-considered review of the petitioner and after detailed deliberations on all the facts relating to the dubious integrity of the petitioner, the instructions of the DoPT, judgments of the Courts, the relevant records of the petitioner, the considered view of the Department after re-examination of the case, upheld the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommittee, on the second occasion, as he had, by then, been appointed as Commerce Secretary. So, the presence of Shri Anup Wadahawan in the Second Review Committee is mandated by DoPT instructions and is beyond the competence of the petitioner to attribute any mala fide. 47. He submits that whereas Alok Vardhan Chaturvedi, as the DGFT, was made the member of the Review Committee, with the approval of Commerce Secretary, as he was representing the cadre management authority for ITS. In this context, it needs to be reiterated that the cadre of ITS officers is managed by the DGFT and the DGFT is the custodian of all service matters of ITS officers. So, no bias can be attributed to his being a member of the Review Committee. 48. According to him, Ms. Anita Praveen, CVO, was the member of the First Review Committee on the first occasion and Shri Shymal Mishra, CVO was the member of the Second Review Committee on the second occasion, as representative of CVC. The consolidated instructions of the DoPT for review under FR56 (j) as contained in the impugned OMs do not prescribe any consultation with CVO or ACC. The appointments to the SAG level of ITS are made with the approval of Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Review Committee for reconsideration. 51. That apart, the instructions of DoPT contained in OM dated May 10, 1974, referred to by the petitioner, has been superseded long back by consolidated instructions issued by DoPT, from time to time. Moreover, when the case of the petitioner was considered, OMs dated March 21, 2014 and March 11, 2015 were applicable. The consolidated instructions of the DoPT for review under FR 56(j) as contained in the impugned OMs do not prescribe any consultation with CVO or ACC. The DoP T has again consolidated all its guidelines, issued from time to time, on the subject, through OM dated August 28, 2020, which again has no requirement for consultation with CVC/ACC. 52. He submits that in the instant case, the Second Review Committee also interacted with the former DGAD, who had espoused about the unethical conduct of the petitioner through a Confidential Note dated March 30, 2017. The facts were also shared, in confidence, with the Chairperson of Representation Committee, keeping in view the sensitivity of the issue involved. On reconsideration of all the facts, the representation was rejected by the Representation Committee and conveye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etent to grant approval for premature retirement. Therefore, seeking approval of ACC before issuing order of premature retirement of an ACC appointee is not considered as mandatory. 58. He further submits that the consultation of CVC in case of existence of material indicative of reflecting adversely on the integrity of any employee, is not mandatory in terms of paragraph 8 of the DoPT's instructions, as CVO in the case of gazette officers, was associated as the member in both the Review Committees. 59. He has also relied upon the judgment of the Supreme Court in Umedbhai M. Patel, (supra), to submit inter alia that if the services of a public servant are no longer useful to the general administration, the officer can be prematurely retired in the public interest. 60. He submits that the high level Committee was constituted to review the cases of various officers, who have crossed the age of 50 years. The Committee examined the relevant service records of various officers and recommended the case of the petitioner for premature retirement. On scrutiny of APARs dossier of the petitioner, it was noticed that several observations were made at different points of time in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, 2020), ACC is consulted only for the appointment, empanelment and upgradation of an officer, not for the retirement of an officer. 64. He submits that once a memorandum dated January 15, 2009 was issued to the petitioner to explain for non-issuance of initiation notification within the prescribed time lime in the sunset review case pertaining to import of Met Coke from China PR. In APAR for the year 1997-98, the Reporting Officer of the petitioner had commented that he works well in a team but better alone and leadership qualities will develop more with experience . The petitioner had also been advised to be more positive in his attitude towards policy issues. Further, in the APAR for the period 1998-99, Reporting Officer of the petitioner commented in integrity column that few complaints were received against the petitioner. In the APAR for the period 2014-15, while petitioner was posted in DGAD, Reporting Officer commented in the integrity column that there is room for improvement. In the year 2017, while the petitioner, was posted in DGAD as Joint DGFT and was drawing Grade Pay of Rs. 10,000/-, a Confidential Note was received from AS DGAD, against the petitioner on Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tude of malice or any instance of past or any fact or reason which could justify the order of compulsory retirement. The said representation was kept pending. In the interregnum, the petitioner had preferred the OA before the Tribunal. During the pendency of said O.A and the said representation, the petitioner, through application under RTI Act, was partially successful in getting ACR/APAR for 10 years, however, file notings regarding decision for Order dated May 10, 2018 was denied. The documents indicative of service credentials were deemed to be relevant. Additional representation dated August 03, 2018 was also preferred and founded on such disclosures received by way of reply to RTI application. The said representation was material because, in petitioner's case, he has been promoted to SAG upon due approval of ACC on November 16, 2017. Furthermore, last APAR of December 2017, categorically notes that there is nothing adverse against the petitioner. In such circumstances, it was reasonable inference that the order dated May 10, 2018 is not founded on service credential of petitioner. The logical corollary thereof, is that there ought to have been some material outside the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings, new facts which have discovered later (after first representation) could not be brought to fore. The general principal of audi alterum partem preordains meaningful hearing which has been judicially read to mean that the prejudiced person shall have full opportunity to rebut anything which could be read against him. The petitioner's right to prefer supplementary representations are all the more a necessity when reasons/ material/ circumstance for invocation of FR 56(j) had not been disclosed. Only through representations he was trying to dispel- if at all any suspicion could be remotely found against him, since the focus of legitimacy of invocation of FR 56(j) has not been spelt clearly by the respondent in terms of disclosure of finding of public interest warranting compulsory retirement. 70. It is his submission that OM dated August 25, 1971, stipulates that FR 56(j) can be exercised only in the following circumstances:- (i) To retire a Government Servant on the ground of specific acts of misconduct as a short cut to initiate disciplinary proceedings; or, (ii) For reduction of surplus staff or as a measure of effecting general economy without followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cause to carry out review post petitioner's completion of 50 years of age, any reason which must have weighed against petitioner, deserves to be not looked at. 76. He further submits that the constitutional jurisdiction of High Courts in service matter, contemplates of all such powers which are exercisable under power of judicial review in executive actions. The dictum laid down in J.N. Sinha Ors. (Supra) when speaks of limited judicial review has contemplated the expression in contradistinction with merit review [Ref. Satish Kumar Singh v. Anil Kumar Yadav and Ors., Chairman, UPPSC, Allahabad, MANU/UP/1944/2015]. 77. He also submits that the respondent in its brief background or elsewhere has not explained what was in particular the material which has led the respondent to form an opinion that petitioner has recurrent issues reflecting on his integrity . The OMs dated May 10, 1974 and September 11, 2015 in paragraph 8, clearly provides that in cases of gazetted officers, initial appointment to which is referrable to the ACC, where action is to be taken on the grounds of lack of integrity, CVC shall be consulted before the case is placed before the ACC. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequent actions based thereon shall also be nullity. This is an error of jurisdiction which goes to the root of the matter and is an incurable one. In the instant case the petitioner, being SAG (Joint Secretary) rank officer, can only be removed/ prematurely retired from the service by the appropriate authority. Indubitably the appropriate authority in the present case is the President of India. However, he is required under Article 74 to act on the aid and advise of the council of ministers. Given the fact that the appointment of petitioner in SAG rank is based on aid and advice of ACC, it is duty incumbent upon the respondent that any decision relatable to curtailment of service tenure by the President shall also be backed by the ACC approval. The OMs of 1974 and 1978 specifically provides for the same. Having not done this, the principal impugned order is bad in law as neither the President was rendered any aid and advice qua the petitioner nor was he apprised of material based on which a subjective satisfaction of President qua existence of public interest warranting invocation of FR 56(j) exists. In fact, the principal impugned order dated May 10, 2018 does not indicate, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er remand of the case, the Second Review Committee, instead of looking into the comprehensive representation of the petitioner dated August 30, 2018 which deliberated in detail about the so called confidential note challenging every aspect of it, did the most unethical thing by interacting with the author of the note behind the back of the petitioner and accepted his version as gospel truth to reiterate its earlier decision. Moreover, the Second Review Committee preferred to interact with the officer who was the reporting officer of the petitioner for only 4 months' but not the previous officer who had supervised the work for over two years with outstanding reports. The petitioner was also not given an opportunity of hearing to explain his case though requested for. 84. He also submits that the respondent admits that influence was brought on the Chairperson of the Representation Committee by way of sharing of facts on confidential basis thereby compromising the objectivity and independence of the Representation Committee. 85. He further submits that the consolidated OMs of 2014 and 2015 lays down prescriptive timelines for the review and re-composition of the Review Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mental biases as is evident from the fact admitted by the respondent that certain information was confidentially shared with the Chairman of the Representation Committee. It clearly means undue influence and pressure was brought on the Chairperson of the Representation Committee after the committee remanded the case back to the review committee for reconsideration of the case of the petitioner. The Representation Committee was constituted for the purpose of an independent and unbiased consideration of the representation and to take an appropriate view to prevent arbitrary use of the powers by the departments. Therefore, it is not a figment of imagination that such senior officers of the Representation Committee could be influenced by the presence of DGFT/Mr. Chaturvedi. It is an admitted fact that materials de hors the records were looked at/or purported to have been looked at or allegedly shared with Chairman of the Representation Committee, seemingly after remanding back the matter by the Committee. The purported sharing of materials which do not form part of record and it seems such were the personal opinion, after remanding back of the matter frustrated the very purpose of rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack to review committee by the representation committee, the said review committee again deliberately and mischievously ignored the said representation because the said representation effectively demolished all frivolous grounds and also brought out the mischief played by the author of the confidential note which formed the main ground of the review. On the contrary, the Second Review Committee interacted with the officer who had given the confidential note to reject the representation even without considering it. Apart from interacting with the author of the confidential note, a new fact now emerges through the counter affidavit that the review committee has gone to the extent of sharing certain facts in confidence, with the Chairperson of Representation Committee to get the representation rejected. It not only seriously violates the principles of independence and fairness of examination of the representations but the respondent has admitted the fact of use of undue influence on the Chairperson of the Representation Committee. The very purpose of an independent committee to examine the representation has been grossly violated by the respondent thereby making a mockery of the whole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ints received but no substance found' and rates the petitioner as 'outstanding'. This in fact is a certificate of integrity in a work environment in which the petitioner was working at that point of time. But this has been picked up as a negative since the review committee did not find anything adverse in any other report/records of over 25 years. As regards the memorandum dated January 15, 2009 which was issued asking the petitioner to explain for non-issuance of initiation notification in an anti dumping investigation in 2008, within the prescribed time limit, the said matter was adequately explained clearly establishing the petitioner's deep and sincere engagement in the matter in the public interest and the issue was appreciated and dropped then itself. But the Committee, in the absence of any other adverse material on record, preferred to pick up this without taking note of the reply and settlement of the issue. Picking up of these three issues itself shows the desperation on the part of the respondent to somehow record something to further its biased conclusion in the absence of any real adverse material in the records of the officer. 90. As regards the APA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the comprehensive representation dated August 30, 2018 and that is precisely why the respondent preferred to ignore this representation all together. The whole process was also compromised in a colourable manner due the presence of Alok Vardhan Chaturvedi, DGFT, in both Review and Representation Committee at the same time. None of the conditions set out in K. Kandaswamy (supra) case, have been found in the case of the petitioner. Neither, there is any written complaint against the petitioner, nor has the respondent found any suspicious property transaction etc. at any point of the long career of the petitioner to attribute issues of integrity. 93. The OM of 2015 only delegates the power of Senior Selection Board to the Committee headed by the Secretaries to carry out the reviews. It in no way alters the approval powers or delegates the powers of the ACC to any other Authority. The fundamental principles of administrative law will not permit a subordinate body to decide the retirement of an officer appointed or promoted by ACC. Further, the consultation process with CVC for senior functionaries at SAG and above is a safeguard built in to check arbitrary use of the powers by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of the APARs of last 25 years indicate any negative attribute on Integrity as explained earlier. III. On few occasions, during different spells of petitioner s posting in DGAD, his unprofessional conduct has been taken on record also- This is far from truth. In fact, all the APARs of both the spells of the postings of the petitioner in DGAD, the petitioner's professional competency and conducts have been highly appreciated by all the supervising officers without exception and all the APARs have been Outstanding . Therefore, it is only a figment of imagination or a biased view of the Committee not supported by any record. IV. In one case of the petitioner, he was charged with insubordination- This is a new allegation raised at the stage of second review committee as there has never been any such charge alleged against the petitioner. The Counter affidavit itself says that there has never been any disciplinary proceeding against the petitioner. Therefore, this statement is again a figment of Committee's imagination. It is clear that the Department was carrying a grudge against the petitioner because he refused to withdraw a petition regarding the cadre review ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above position has not been subjected to any change, inasmuch as, the OM dated March 21, 2014, specifically refers to the OMs of 1969 and 1974, which provide that the approval of ACC is mandatory before invoking FR 56(j); iii. The requirement of seeking approval of ACC is an essential safeguard against arbitrary exercise of powers and the manner for taking a decision. The requirement of taking the approval of the ACC contemplates full disclosure, so as to enable it, to form a considered opinion. The non-disclosure or not placing the matter before the competent authority nullifies the action taken on the subject matter; iv. In case, the action taken under FR 56(j) relates to lack of integrity , CVC has to be consulted; v. The OM dated May 10, 1974, specifically prescribes the requirement of consultation with the CVC, in case the action is proposed to be taken for want of integrity. It is a settled law, if law prescribes something to be done in a particular manner, all other course stand barred; vi. In the present case, no consultation has been taken place with the CVC before retiring the petitioner under FR 56(j); vii. The Tribunal has failed to apprec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adre Controlling Authority. In this case, as the petitioner was working under DGFT, it was the Secretary, Ministry of Commerce, who was required to be part of the Review Committee. There is no denial to the fact that the Secretary, Ministry of Commerce, was part of the Review Committee which took the decision to compulsorily retire the petitioner. 100. It may also be stated here that one of the pleas of Mr. Ghose is that the petitioner having been retired under FR 56(j) doubting his integrity, he could have only been prematurely retired, with the concurrence of the CVC and in the present case, no such concurrence has been taken by the respondent. In this regard, reliance has been placed by Mr. Ghose on the OM dated May 10, 1974, the relevant part of which reads as under:- The undersigned is directed to refer to Item 1(a) of Appendix II to the Ministry of Home Affairs (now Department of personnel and A.R.) O.M. No.33/13/61-Ests. (A) dated the 23rd June 1969 as modified by O. . No.33/9/78-Ests (A) dated the 10th September, 1971 and to say that the procedure for the review of the cases of Gazette Officers holding posts, initial appointment to which is referable to the Appointm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mittee 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 Review Committee which reviewed the decision of the First Review Committee, comprised of same set of Officers viz. Alok Vardhan Chaturvedi and Anoop Wadhawan and as such their presence in both the committees, is anti-thesis to the principles of natural justice. Whereas it is the submission of Mr. Ravi Prakash that Alok Vardhan Chaturvedi was the DGFT and representing the cadre management of the ITS Officers and as such his presence was required in both the Committees. 105. We are unable to agree with this submission of Mr. Ghose for the simple reason as rightly pointed out by Mr. Prakash that the presence of Alok Vardhan Chaturvedi was required in both the committees as he was representing the cadre controlling authority of the ITS. 106. Similarly, Anoop Wadhawan was required to be present in the First Review Committee as he was an Additional Secretary. Whereas, in the Second Review Committee, his presence was required in the capacity of Secretary, Ministry of Commerce as by that time, he had become the Secretary. It is stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, there was some basis for Inderjit Singh to give the confidential note in the manner he did. We have also perused the confidential note as well as stand taken by the respondents in paragraphs 41, 52 and 64 above qua the confidential note. The aforesaid aspect, coupled with the adverse recording in the APARs, specifically questioning the integrity of the petitioner in APAR of 2014-2015, surely weighs credibility to the confidential note, which aspect was also taken into consideration by the Second Review committee to reaffirm the earlier recommendation of compulsory retirement in respect of the petitioner. 110. Moreover, no allegations imputed against Inderjit Singh, referred to in paragraphs 32 and 88 above, are as such admissible in law. This we say so, as Inderjit Singh has not been made party to this petition so as to enable this Court to call upon him to file an affidavit with regard to the allegations made by the petitioner against him in the petition. So, the Second Review Committee having taken into conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 and discussion on critical policy issues and participated in International Seminars and Workshops organized by WTO as a resource person. f. He had been entrusted with the responsibility of setting up a Special CVD ceil in the DGAD (now DGTR) to handle all anti-subsidy cases against India; g. He was promoted to Senior Administrative Grade of Indian Trade Service (Joint Secretary Grade) on ad-hoc basis, vide order dated 16.11.2017 and was posted as Development Commissioner of MIHAN SEZ, Nagpur. The instructions provide that if an officer has been recently promoted it would go in his favour; h. No disciplinary proceedings were ever initiated or any adverse report on any account was ever communicated to him in all these years; i. The integrity column in the confidential reports has always mentioned him as above board; j. No public interest would be served by retiring an outstanding and hardworking officer who has immensely contributed to the organizations he has served, as du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osing 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 seasoned and experienced Das used to handle this pressure very tactfully. Unfortunately, this DA, being new, could not handle the extreme pressure brought on him and succumbed to a well calculated strategy of the industry to remove the inconvenient officer. The DA himself records in the note that the allegations are clearly unsubstantiated and no iota of evidence was available. Further after giving this note and getting the undersigned out of the Directorate DA goes to notify the same finding prepared by the undersigned in a few days. 16. It is respectfully submitted that had there been any unprofessional handling or manipulations as has been alleged in the note the same finding could not have been issued by the DA after transferring the undersigned from the Directorate. The case was examined and re-examined at several levels, including the DA himself, as recorded in his notes. But they obviously could not find anything wrong in the findings and accordingly, the final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 most, the Second Review Committee has even sought the clarification on the confidential note given by the AS DA (Inderjit Singh), before forming its opinion. Hence, in that sense, the action of the Review Committee, is bona fide and cannot be said to be based on hearsay evidence. 122. It is also the submission of Mr. Ghose that the Tribunal has failed to appreciate that the review for the purpose of invocation of FR 56 (j) is required to be done either at the age of 50 years or 55 years and the same must be completed six months prior to attainment of the said age. According to him, in the instant case, the petitioner was of the age of 55.6 years i.e., beyond 55 years and as such, he could not have been compulsorily retired. The said submission is without merit and is no more res-integra in view of the judgment of the Supreme Court in the case of Rajendra Singh Verma (Dead) through L.Rs v. Governor of NCT of Delhi and Ors. MANU/SC/1071/2011, wherein, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 posts in connection with the affairs of the Union of India, shall regulate the conditions of such service. 29. In Delhi Judicial Service Rules, 1970, No. provision for compulsory retirement has been made. Therefore, Fundamental Rule 56(j), which is, for the time being in force and applicable to Government servants holding corresponding posts envisaged under the Delhi Judicial Service Rules, 1970, shall regulate the matter of compulsory retirement of officers of Delhi Judicial Service. Fundamental Rule 56 (j), which is applicable to officers of Delhi Judicial Service, reads as under: (j) Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice: (i) if he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haturvedi, 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 the petitioner therein, wherein, the High Court of Allahabad, had comprehensively defined the term malice with the aid of multiple cases in order to arrive at a conclusion as to whether the opposite party therein had committed an offence under section 211 of IPC,1860 and as such, the said case had nothing to do with invocation of FR 56(j). 125. Insofar as the plea of Mr. Ghose that the Second Review Committee has interacted with the former DGAD, who had espoused about the unethical conduct of the petitioner through a note dated March 13, 2017, which fact was also shared with the Chairperson of the Representation Committee, and as such the whole process has been vitiated, is also not convincing. This we say so, the stand of the petitioner is that the members of the Second Review Committee were influenced by DGAD, who had also shared the facts of the Confidential Note with the Chairperson of the Representa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 placed upon a three-Judge Bench judgment of this Court reported as Pyare Mohan Lal v. State of Jharkhand [Pyare Mohan Lal v. State of Jharkhand, (2010) 10 SCC 693 : (2011) 1 SCC (L S) 550] and it was observed that : ( Babu Lal Jangir case [Rajasthan SRTC v. Babu Lal Jangir, (2013) 10 SCC 551 : (2014) 2 SCC (L S) 219] , SCC pp. 563-64, paras 22-23) 22. It clearly follows from the above that the clarification given by a two-Judge Bench judgment in Badrinath [Badrinath v. State of T.N., (2000) 8 SCC 395 : 2001 SCC (L S) 13] is not correct and the observations of this Court in Gurdas Singh [State of Punjab v. Gurdas Singh, (1998) 4 SCC 92 : 1998 SCC (L S) 1004] to the effect that the adverse entries prior to the promotion or crossing of efficiency bar or picking up higher rank are not wiped off and can be taken into account while considering the overall performance of the employee when it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds, 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 the High Court has not only misread the judgment of this Court in Baikuntha Nath Das [Baikuntha Nath Das v. District Medical Officer, (1992) 2 SCC 299: 1993 SCC (L S) 521] but wrongly applied the principles laid down therein. The adverse remarks can be taken into consideration as mentioned in the number of judgments mentioned above. There is also a factual error in the order [ Om Prakash v. Central Industrial Security Force, 2011 SCC OnLine Del 4388 ] of the High Court that there are no adverse remarks and that the ACRs for the year 1990 till the year 2009 were either good or very good. In fact, the summary of ACRs as reproduced by the High Court itself shows average, satisfactory and in fact below average reports as well. 15. The entire service record is to be taken into consideration which would include the ACRs of the period prior to the promotion. The order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained 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 that the adverse entries had not been communicated to him and the officer had been promoted earlier in spite of those adverse entries. More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement. The case of a judicial officer is required to be examined, treating him to be different from other wings of the society, as he is serving the State in a different capacity. The case of a judicial officer is considered by a committee of Judges of the High Court duly constituted by the Hon'ble the Chief Justice and then the report of the Committee is placed before the Full Court. A decision is taken by the Full Court after due deliberation on the matter. Therefore, there is hardly any chance to make the allegations of non-application of mind or mala fides. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 chose not to file any representation against it. So, this judgment will have no applicability in the facts of this case. 131. Insofar as, the judgment in M.E. Reddy and another (supra) is concerned, it is a case wherein it has been held that if an order of compulsory retirement has been passed in colourable exercise of powers, motivated by victimization, arbitrary or mala fide, then a Court can strike it down. 132. It is stated here that the plea of mala fide, as urged by Mr. Ghose, is not sustainable in the facts of the present case, for the simple reason, that the petitioner has not alleged in law, mala fides, against the Competent Officer, who has taken a decision to compulsory retire the petitioner, i.e., Minister In-Charge, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 action of compulsorily retiring the petitioner has been taken against him on the basis of his entire service record, which includes inter alia, his personal files, the confidential note and the remarks made against him by the DGFT in the APARs. So, in that sense, it cannot be said that the order dated May 10, 2018, passed by the respondent is based on extraneous considerations. 137. Insofar as the judgment of the Supreme Court in the case of D. Ramaswami (supra) is concerned, it was the case wherein the Supreme Court has held that if an order of compulsory retirement is passed soon after a promotion is given to an employee, in absence of any adverse circumstances against such an employee, the same is not justifiabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsofar 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 Review Committee, have comprehensively considered the entire service record of the petitioner and came to the conclusion to compulsory retire the petitioner in the public interest and as such, the said judgment shall also not help the case of the petitioner. 142. As far as the judgment in the case of Amar Nath Chowdhury (supra) is concerned, it was the case, wherein the appellant therein was subjected to a domestic inquiry and as a result he was removed from the service and as such, it was not the case wherein the petitioner therein was compulsorily retired as opposed to the present case wherein the petitioner herein has been compulsorily retired on the basis of his entire service record and thus, this jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 terms of conduct and functional competence and as such this approach of the petitioner fall foul of the law laid down in Mohinder Singh Gill and Ors. (supra). Suffice to state, as already held above that while invoking FR 56 (j) to compulsorily retire a government employee, an authority gas to see an entire service record of an employee and even a single adverse remark can lead to invocation of FR 56 (j). Suffice to state, in the present case also, the respondent after detailed examination of the representation dated June 01, 2018, of the petitioner, as well as his entire service record, had decided to retire the petitioner. Therefore, this judgment shall also not help the case of the petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terfere 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 petitioner and only after perusal of the same, all the three committees, have come to the conclusion that the petitioner needs to be compulsorily retired. Therefore, it cannot be said that the order of compulsorily retiring the petitioner has been passed in an arbitrary manner and as such, these judgments shall not help the case of the petitioner. 150. Mr. Ghose has also placed reliance on the judgment of the Supreme Court in the case of The Barium Chemials Ltd. and Ors. (supra) to contend that in absence of consultation with CVC as to existence of materials indicative of reflecting adversely on the integrity of any employee, no opinion on existence, validity and sufficiency qua integrity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aragraph 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 applicable to administrative enquiries also. Moreover, an unjust decision in an administrative enquiry has more far reaching effect than a decision in a quasi judicial enquiry and if a complaint is made before a Court that some principles of natural justice has been contravened, the Court should decide whether the observance of that rule was necessary for a just decision on the facts of that case. 154. There is no doubt that there cannot be an unjust decision even in an administrative enquiry. However, in the present case, as it has been held, that the respondent has not taken an arbitrary decision and it is also settled position of law that in cases of compulsory retirement, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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