Mohd. Ahmed vs Commussioner, South Delhi Municipal Corporation & Others

L.Narasimha Reddy, J

The applicant was appointed as Junior Engineer in the Municipal Corporation of Delhi in the year 1988. Thereafter, he was promoted as Assistant

Engineer in the year 2009. On trifurcation of the Corporation, the applicant was allotted to South Delhi Municipal Corporation. Through an order dated

13.09.2019, the Corporation retired the applicant from service by invoking power under FR 56 (j) and Rule 48 of CCS (Pension) Rules, 1972. Initially,

the applicant filed an OA challenging the order dated 13.09.2019.That was disposed of by leaving it open to the applicant to avail the remedy of

review. The review filed,by the applicant was rejected on 13.12.2019. This OA is filed challenging the order of premature retirement dated 13.09.2019

as affirmed in the office order dated 13.12.2019.

The applicant contends that his ACRs were graded as ‘very good’ or ‘outstanding’ and obviously for that reason he was promoted in

the year 2009. He contends that though certain disciplinary proceedings were initiated against him before his promotion to the post of Assistant

Engineer, they ended either in exoneration or imposition of minor penalty. It is also stated that two cases were registered against him by CBI and in

both of them, he was acquitted by the Trial Court. The applicant contends that,in the background of his service, there was no justification for the

respondents in retiring him much beforehe attained the age of superannuation.

The respondents filed a detailed reply. They contend that the Corporationhas constituted a Committee of senior officers to examine the cases of the

officers of the Group ‘B’ who have crossed the age of 50 years with a view to bring out transparency. According to them, the Committee so

constituted, examined the entire service record of the applicant and, recommended his case for premature retirement, and accordingly the impugned

order has been passed. They contend that the applicant faced disciplinary as well as the criminal proceedings and it was felt that his continuance

beyond 50 years is not in the interest of the Corporation.

Sh.Rajeev Sharma, learned counsel for the applicant argued that the service record of the applicant is almost without any blemish andthere was no

basis for the respondents to pass the impugned order. He contends that no major penalty was imposed against the applicant,and though criminal cases

were registered by CBI, they ended in acquittal. Placing reliance upon the judgements of the Hon’ble Supreme Court, learned counsel for the

applicant contends that the impugned order deserves to be set aside. He has also filed written arguments.

Sh. R.K.Jain, learned counsel for the respondents on the other hand submits that FR 56 (j) and the corresponding provision in the pension Rules

were enacted with a view to ensure transparency and efficiency in the departments, even while taking care of the interest of the officers who are

retired a bit in advance. He submits that even according to the particulars furnished by the applicant, it is evident that he faced disciplinary as well as

the criminal proceedings with serious allegations, and irrespective of the result thereof, the Corporation felt that it is not in the public interest to

continue the applicant in service. He placed reliance upon certain judgement of the Supreme Court.

The career of the applicant started as Junior Engineer in the year 1993, in the erstwhile Municipal Corporation of Delhi. He was also promoted to

the post of Assistant Engineer in the year 2009. The Corporation felt it appropriate to retire the applicant from service two years before he attained

the age of superannuation. The said order is challenged in this OA.

The parameters for adjudication of matters of this nature are fairly well settled. The applicant himself made extensive reference to the principles

enunciated by the Hon’ble Supreme Court in BaikunthaNath Das & another vs.Chief Distt. Medical Officer, Baripada& another, 1992 AIR

1020, they are as under :-

“32. The following principles emerge from the above discussion:

(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.

(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant

compulsorily. The order is passed on the subjective satisfaction of the government.

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny

is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are

satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary - in the sense that no

reasonable person would form the requisite opinion on the given material; in short, if it is found to be perverse order.

(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a

decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so

considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government

servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based

upon merit (selection) and not upon seniority.

(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated

adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interfere. Interference is permissible

only on the grounds mentioned in (iii) above.â€​

It is true that an observation was made in State of Gujarat Vs. Umedbhai M. Patel (2001) 3 SCC 31,4 that if no disciplinary proceedings are

initiated against an official after he was promoted, invocation of FR 56 (j) tends to become untenable. However in subsequent judgements such as in

Pyare Mohan Lal Vs. State of Jharkhand (2010) 10 SCC 693 and Punjab State Power Corporation Vs. HariKishanVerma(2015)13 SCC

156,the Hon’ble Supreme Court held that the record of the officer, in its entirety,needs to be taken into account and it cannot be

compartmentalized.

The record in the form of ACRs is one category of material. The disciplinary and criminal proceedings initiated against the official would constitute

another category. If the record of the official discloses that there do not exist any adverse material against him,the order of premature retirement

deserves to be set aside. Where, however, material of some relevance exists, the Tribunal cannot go further to examine the adequacy there of.

If we examines the case on hand, by applying the principles referred to above, it emerges that the applicant, did face the disciplinary proceedings

so much so, punishment,albeit minor in nature was imposed. Even while admitting plurality of such proceedings,the applicant as well as the

respondents maintained silence about the particulars thereof. It becomes clear that there exists material, in the form of initiation of disciplinary

proceedings against the applicant.

What makes the things a bit worse for the applicant is that he was prosecuted in two cases by CBI. Obviously the charges are very serious in

nature. It is a different matter that he was acquitted for want of sufficient evidence,though the applicant pleaded that he is acquitted therein. Failure of

the prosecution to prove the event to the satisfaction of the court may have resulted in acquittal. However, from the point of view of the department,

the blemish cannot be said to have been completely obliterated.

Further, the factors referred to above are not being taken into account for imposition of any penalty. It is just for advancement of the date of

retirement, duly ensuring the payment of all the retirement benefits. Unless such steps are taken, the departments tend to become sanctuaries where

the persons who faced criminal and departmental proceedings would feel safe.

We do not find any merit in the OA and the same is dismissed. There shall be no order as to costs.