Vinod Kumar vs Govt. Of NCT Of Delhi And Ors

L. Narasimha Reddy, J

The applicant was working as Administrative Officer on ad hoc basis, in the Delhi, Andaman and Nicobar Islands Civil Service (DANICS). Through Order No.F.30/21/2019/S-I, dated 31.10.2019, the first respondent compulsorily retired the applicant from service by invoking Clause 56(j) of the Fundamental Rules. A corrigendum was issued on 04.11.2019 to the effect that the order of compulsory retirement shall be effective from 20.01.2020, on which date the applicant attains or crosses 50 years of age. This OA is filed, challenging the order of compulsory retirement passed against the applicant.

The applicant contends that his service record throughout was unblemished; and though he was shown as accused in a CBI Case bearing No.CC No. 12/2007 under Section 120B/420IPC/13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988, the Trial Court passed order dated 26.03.2018, refusing to take cognizance of the same and thereby, he stood discharged. It is also stated that though CBI has filed a revision, challenging the order passed by the Trial Court, it hardly constitutes any basis for invoking FR 56(j) against him. The applicant contends that he was rated high in some of the APARs and still FR56(j) was invoked by the respondents being clearly of the view that no basis exists for initiation of disciplinary proceedings.

The applicant further contends that the first respondent has evolved the procedure for examining the cases for invocation of FR 56(j) by constituting a high power Review Committee through order dated 02.07.2019 and within a short time thereafter, the constitution of Committee was completely watered down through another order dated 06.08.2019. He has raised certain other grounds.

The respondents filed a counter affidavit, opposing the OA. It is stated that to access incomplete APARs of the applicant, and file them along with the OA is highly objectionable and is reflective of the attitude of the applicant. It is also stated that passing of the impugned order has nothing to do with the nature of performance of the applicant and on the other hand, it is based upon his being included in the „Agreed List" prepared by the CBI, in relation to his integrity. It is also stated that the procedure prescribed by the Government of India in OM dated 21.03.2014 for processing the cases under FR56(j) was strictly complied with.

Arguments in this OA were addressed by Shri Nalin Kohli, learned senior counsel for the applicant with the assistance of Shri Yogesh Sharma. They contend that invocation of FR56(j) against an employee is not a matter of course nor an alternative to initiation of disciplinary proceedings. According to the learned counsel, the record of the applicant is very clean as is evident from his APARs and though he was shown as accused in the criminal case, the Trial Court refused to take cognizance of the same. It is submitted by them that the inclusion of the name of the applicant in the Agreed List was absolutely without any basis.

It is pointed out that there is clear non-application of mind in the context of passing the impugned order, inasmuch as the respondents were not even aware as to the age of the applicant which is relevant for invocation of the provisions under FR56(j).

Reliance is placed upon the judgement of the Hon"ble Supreme Court in State of Gujarat &Anr. vs. Suryakant Chunilal Shah, (1991)1 SCC 529, judgment of Punjab and Haryana High Court in Ranbir Singh vs. The State of Haryana &Ors. CWP 8403/2006 and judgment of Jammu and Kashmir High Court in Mohammad Shafi Shah vs. Comm. Sectt. PWD &Ors., Case No. SWP 1379/2015.

Ms. Esha Mazumdar, learned counsel for the respondents, on the other hand, submits that the indiscipline on the part of the applicant is evident from the fact that he has not only gained access to the incomplete APARs which are highly confidential, but also has filed copies thereof, in the OA. She contends that the prescribed procedure under FR56(j) was strictly followed and to ensure objectivity, the Review Committee was also constituted with the participation of the senior officers. Learned counsel submits that inclusion of name of the applicant in the Agreed List provides an adequate basis for invoking FR56(j), and that the applicant cannot be said to have suffered any loss. It is also stated that an inadvertent error as to the effective date of retirement of the applicant was corrected through a corrigendum, and it cannot be treated as an instance of non-application of mind. She placed reliance upon the judgment of the CAT, Calcutta Bench in Adesh Kumar vs. Union of India&Ors. (OA No. 1055/2017) and certain other precedents.

The applicant joined service of Government of NCT of Delhi as Grade-II(DASS) on 05.05.1994. He was promoted to Grade-I(DASS) in the year 2002. His further promotion to DANICS was on ad hoc basis, in the year 2012. The applicant was in the Department of Trade and Taxes (Enforcement-II Branch), Govt. of NCT of Delhi. A joint surprise check was conducted on 26.07.2013 by CBI/ACB/Delhi and an FIR was registered against the applicant and two other officers. A copy of the order dated 26.03.2018 passed by the Court of Dr. Kamini Lau, Special Judge (PC Act), CBI, is placed before us. A perusal of the same discloses that the allegation was that the applicant and two other officers, who were part of Enforcement Wing, detained a vehicle bearing Registration No.RJ-14-GC-2334 and raised a demand of Rs.2,00,025/- in the form of tax and penalty and released the said vehicle, but when a surprise check team verified the record, it emerged that the amount should have been Rs.3,70,748/-. The allegation was that the applicant entered into criminal conspiracy with the transporter, through its booking Manager, one Mr. Manjesha T.S. with an objective to facilitate the transporter for obtaining the pecuniary advantage and to cheat the Government. Sanction for prosecution of the applicant and two other officers were also obtained. The order further discloses that the learned Trial Judge has put certain questions to the investigating officer and on the basis of the answers to those questions, an opinion was formed that there is no direct or indirect material on record to show that the public servants had obtained any valuable things or pecuniary advantage for themselves or for any other person. Accordingly, the Court refused to take cognizance of the offences. It is also brought to our notice that order passed by the Trial Court is the subject matter for adjudication by a superior Court. It is ultimately for the concerned court to decide the correctness or otherwise of the order passed by the Trial Court.

The respondents invoked FR56(j) against the applicant and passed an order dated 31.01.2019, directing that he stands retired and was paid a sum equivalent to three months" salary, in lieu of notice. Obviously because the case of the applicant was processed along with the cases of others, proper attention does not appear to have been paid to the date of birth of the applicant, namely, 20.01.1970. Once it was realised that compulsory retirement under FR-56(j) can be only against the employee who has crossed the age of 50 years, a corrigendum was issued on 04.11.2019. Though it is pleaded that the entire exercise is reflective of non-application of mind, we are not inclined to accept the plea.

The applicant placed heavy reliance upon the APARs for the year 2014-15, 2015-16, 2016-17 and 2018-19 and in fact, has filed copy thereof. The respondents have categorically stated that the APARs of the applicant for those years are not complete.

It hardly needs any emphasis that an APAR happens to be confidential document and the occasion to communicate the same, that too, to the concerned officer is when an adverse entry is made. In light of the recent judgment of the Hon"ble Supreme Court in Dev Dutt's case, it became necessary to communicate the APAR, if it is rated below benchmark. Barring that, the occasion to communicate the APARs even to the concerned employees does not exist. On a specific question as to how the applicant accessed to the APARs of the four years and, too, when they have not been processed as yet, no definite answer is forthcoming. The conduct of the applicant in this behalf is highly objectiionable.

The Hon"ble Supreme Court examined the issue pertaining to the invocation of FR56(j) in detail in the Suryakant Chunilal Shah"s case (supra). Based upon the observations made therein, DoPT issued guidelines through OM dated 21.03.2014. Paras 4 and 5 of the said OM are relevant and they read as under:-

"4. In order to ensure that the powers vested in the appropriate authority are exercised fairly and impartially and not arbitrarily, following procedures and guidelines have been prescribed for reviewing the cases of government employees covered under the aforesaid rules:

• The cases of Government servants covered by FR 56(j) or FR 56(I) or rule 48(1)(b) of the CCs (Pension) Rules should be reviewed six months before they attain the age of 50/55 years or complete 30 years service/ 30 years of qualifying service, whichever occurs earlier.

• Committees shall be constituted in each Ministry/ Department/ Office, to which all such cases shall be referred for recommendation as to whether the Officer concerned should be retained in service or retired from service in the public interest.

The criteria to be followed by the Committee in making their recommendations would be as follows:-

(a) Government employees whose integrity is doubtful, will be retired.

(b) Government employees who are found to be ineffective will also be retired. The basis consideration in identifying such employees should be the fitness/competence of the employee to continue in the post which he/she is holding

(c) While the entire service record of an Officer should be considered at the time of review, no employee should ordinarily be retired on grounds of ineffectiveness if his service during the preceding 5 years or where he has been promoted to a higher post during that 5 year period, his service in the highest post, has been found satisfactory.

(d) No employee should ordinarily be retired on ground of ineffectiveness, if, in any event, he would be retiring on superannuation within a period of one year from the date of consideration of his case.

Ordinarily no employee should be retired on grounds of ineffectiveness if he retiring on superannuation within a period of one year from the date of consideration of the case. It is clarified that in a case where there is a sudden and steep fall in the competence, efficiency or effectiveness of an officer, it would be open to review his case for premature retirement.

The above instruction is relevant only when an employee is proposed to be retired on the ground of ineffectiveness, but not on the ground of doubtful integrity. The damage to public interest could be marginal if an old employee, in the last year of service, is found ineffective; but the damage may be incalculable if he is found corrupt and demands or obtains illegal gratification during the said period for the task he is duty bound to perform."

Para 4 deals with the review of the case of the employees six months before they attain the relevant age. It is not in dispute that a Committee was constituted by the first respondent. Though a Committee comprising of five senior officers was constituted through order dated 02.07.2019, for all categories of employees, it was felt that Committee for different categories of employees, i.e. Group A & Group B and Group C & Group D is necessary. Accordingly, separate Committees were constituted on 06.08.2019. Learned counsel for the applicant made an effort to point out that the constitution of the Committee was watered down in the entire exercise. We, however, do not find such element in the re-constitution of the Committees.

Para 5 of the OM extracted above, maintains a distinction between the compulsory retirement of an employee on the grounds of steep fall in competence, efficiency or effectiveness on the one hand and, on the ground of doubtful integrity on the other hand. The level of scrutiny in the former category of cases is indicated in detail. The instructions are clear to the effect that the various precautions stipulated for invoking the provisions against the employees on the grounds of fall in competency, efficiency and effectiveness, do not apply, where it is sought to be invoked on the doubtful integrity. The applicant could have genuine grievance, had he been compulsorily retired on the allegations of lack of competence, efficiency and effectiveness. The respondents are consistent in their stand that the applicant was retired compulsorily on the basis of the inclusion of his name in the Agreed List by the CBI. Even such inclusion cannot be said to be without any basis nor is it questioned before us.

The mechanism contemplated under FR 56(j) is a middle way, between the initiation of disciplinary proceedings on the one hand and continuing or otherwise undesirable official in the service, on the other hand. While initiation of disciplinary proceedings entails imposition of serious punishment and attaching of stigma, the loss, if at all suffered by an employee on account of compulsory retirement under FR56(j) is relatively far less. Even in comparison with, compulsory retirement imposed by way of punishment, the one brought into existence by invoking FR56(j), is respectable exit for an employee.

Heavy reliance is placed upon the judgment of the Hon"ble Supreme Court in Suryakant Chinilal Shah"s case (supra). That was also a case of compulsory retirement.

What weighed with the Hon"ble Supreme Court was that the Review Committee has examined the case of the respondent therein and opined that he committed grave irregularity and must be punished severely by initiating disciplinary proceedings, whereas the appointing authority has invoked FR56(j). The facts of the case in hand are substantially different. The review Committee specifically recommended the invocation of FR 56(j) against the applicant.

In Ranbir Singh"s case (supra), the only fact that weighed with the Review Committee was the pendency of a criminal case. The High Court took the view that pendency of a criminal case cannot constitute a basis for invocation of FR56(j). It has already been mentioned that the fact that weighed with the Review Committee in the case of the applicant herein is the inclusion of his name in the Agreed List.

In Mohammad Shafi Shah"s case (supra), the compulsory retirement of the employee therein was on the allegation of lack of integrity and the only basis was a pending FIR. After referring to the relevant precedents, the Hon"ble High Court viewed that FIR by itself does not constitute the basis. It has already been mentioned that the name of the applicant was included in the Agreed List and the applicant did not challenge such inclusion. When FR56(j) is invoked on the allegation of lack on integrity, the scrutiny will be relatively less.

Recently, in Adesh Kumar"s case (supra), the Calcutta Bench of this Tribunal dealt with the identical case. The name of the applicant therein figured in the doubtful integrity list and it was found to be an adequate ground for invoking FR 56(j).

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