|
2023-TIOL-14-SC-SERVICE
Captain Pramod Kumar Bajaj Vs UoI
Service Matter - The Appellant has served as an officer of the Indian Army holding a Permanent Commission - On account of physical disability suffered in course of military operations, the appellant was discharged from service - Later, the Appellant qualified the Civil Services Examination & was allocated the Indian Revenue Service - The Appellant joined the Income Tax Department and rose through the ranks to become CIT - Later, the Appellant was also selected and empanelled for appointment as Member of the ITAT, by a Selection Committee comprising of a puisne Supreme Court judge nominated by the CJI - The Appellant's name was forwarded to the Appointments Committee of the Cabinet (ACC) along with vigilance clearance for appointment as Member (Accountant), ITAT - Thereafter, the Appellant was empanelled by ACC for appointment as Joint Secretary to the GoI - From 2017 onwards began a history of litigation, due to which the Appellant's appointment as Member ITAT did not mature - The first hurdle faced was an adverse report from the Intelligence Bureau - On approaching the Central Administrative Tribunal (CAT), it was directed that the Respondent-Union to have the Selection Committee reconsider the adverse report from the Intelligence Bureau - A writ petition filed by the Respondent against the CAT order was not fruitful & the Selection Committee was asked to complete the re-consideration process within a time frame - An SLP by the Respondent came to be dismissed by the Supreme Court - Thereafter, the Appellant's office was subjected to a vigilance inspection & some time later, the vigilance clearance granted merely 10 days earlier was revoked - On approaching the CAT, directions were issued that the revocation of vigilance would not affect the Appellant's appointment to the ITAT - Another Interim Order was passed holding that the withholding of the vigilance clearance of the appellant will not come in his way for appointment to the subject post - Meanwhile, the name of the Appellant was placed in the Agreed List, a list prepared by the Department of Gazetted Officers of suspect integrity - A second SLP filed by the Respondents was dismissed by the SC - Aggrieved by his name being put on the Suspect List, the Appellant approached the Supreme Court, and secured an Interim Order - Meanwhile, the CAT allowed two applications filed by the Appellant to quash inclusion of his name in the Agreed List & the decision taken to deny vigilance clearance - The CAT further directed the Respondents to forward the Appellant's name to the Appropriate Authority for selection as Member, ITAT, but such order was not complied with - Though the Respondent filed Writ Petition before High Court challenging the CAT judgment, no stay was granted thereon - Thereafter, aggrieved by non-compliance, the Appellant filed contempt petition before the High Court, which later permitted impleadment of the then Chairman of the CBDT in the Contempt petition & issued SCN proposing punishment for wilful disobedience - Similarly, SCNs were issued by the CAT on contempt petitions filed by the Appellant for non-compliance with its orders - Meanwhile, the Respondents commenced disciplinary proceedings by issuing a chargesheet - Thereafter, a Departmental Promotion Committee was convened by the UPSC to consider promoting the Appellant to PCIT rank, but the decision taken was placed in a sealed cover due to the pending disciplinary proceedings - The Appellant filed a Writ Petition against the chargesheet issued & the High Court passed Stay order in his favor - While proceedings were pending, the Respondent proceeded to compulsorily retire the Appellant, about 3 months short of date of superannuation - The Appellant was also not in the reckoning for the post of PCIT - The Appellant challenged the order of compulsory retirement & subsequent order of the Representation Committee declining to interfere in the order of compulsory retirement - The Petition was dismissed and dismissal thereof was upheld by the High Court.
Held - It is 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: SC
+ 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 Appointing Authority is then required to examine the recommendations of the Review Committee and if satisfied, pass an order of pre-mature retirement of the concerned Officer. Once the Competent Authority passes an order of pre-mature retirement under FR 56(j), the aggrieved Officer is entitled to submit a representation to the Representation Committee. As per the records, the appellant had submitted a representation to the Representation Committee, which was turned down on 2nd January 2020; (Para 8)
+ 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; (Para 25)
+ + We may now proceed to examine the facts of the case in hand in the light of the case laws discussed above in order to find out as to whether the order of compulsory retirement passed by the respondents in respect of the appellant was based on valid material and was in public interest. First, we propose to examine the personal file and character roll of the appellant. 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, 2019 and found to be upto the mark. In his APARs for the past one decade, till the period just prior to the order of his premature retirement, the respondents were consistently grading the appellant as "Outstanding". No adverse entries were made by his superiors in the APARs of the appellant insofar as his work performance was concerned. No aspersion was cast either on his conduct or character during all this period. As per the service records, his efficiency and integrity remained unimpeachable throughout his career. The inference drawn from the above is that the appellant's service record being impeccable could not have been a factor that went against him for the respondents to have compulsorily retired him; (Para 26)
+ As can be seen from the above, out of the aforesaid nine complaints, four complaints mentioned at Sr. Nos. 2, 6, 7 and 8 had already been closed by the department in the year 2016- 2017. With regard to the complaint listed at Sr. No.1, is stated to have been levelled by another officer of the department against the appellant, relating to harassment and interference in work. The Tribunal has noted the submission of the appellant, which has gone unrefuted that the Anti- Corruption Bureau of the Central Bureau of Investigation had at a later date, arrested the said officer on charges of corruption. The appellant has also stated in the remarks column that no explanation had ever been called for from him on the said complaint, status whereof is shown as "Under examination". In respect of the complaints at Sr. Nos. 3 and 4, the respondents have stated that they are "Under examination". In reply, the appellant has stated that the complaint at Sr. No.3, of the year 2016 was closed by the ADG (Vigilance)(NZ) on 10th February, 2016 and the complaint at Sr. No.4, made by a relative of an officer within the Department, was rejected because the complainant did not provide his PAN number despite being afforded two opportunities. There is no rebuttal to the said assertions. Coming to the complaint at Sr. No. 5, the Review Committee constituted by the respondents has recorded the status of the said complaint as having been closed on 22nd January, 2019. This is apparent from a perusal of para 26 of the judgment dated 09th December, 2020, passed by the Tribunal. Now remains the complaint at Sr. No.9, which was made by the appellant's ex-wife alleging bigamy, moral turpitude etc. against the appellant. In the remarks column, the respondents have stated that necessary information in respect of the said court proceedings between the parties was sought by the department. The appellant has clarified that a decree of divorce was granted to the parties by the concerned Court and a copy of the said order was duly supplied to the department against receipt on 21st March, 2018.
+ Insofar as the matrimonial dispute of the appellant is concerned, the material placed on record reveals that the same had attained quietus by virtue of 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 Rs. 6,00,000/- (Rupees six lakhs) was paid by the appellant's brother to the seller towards the sale price of the flat;
+ Once the parties had arrived at a settlement and a decree of divorce by mutual consent was passed by the concerned Court, the allegations of bigamy etc. levelled by the appellant's wife loses significance since the case was never taken to trial for any findings to be returned by the Court on this aspect. In the above backdrop, there appears no justification for the respondents to have raised the spectre of a series of complaints received against the appellant during the course of his service that had weighed against him for compulsorily retiring him, more so, when these complaints were to the knowledge of the respondents and yet, his service record remained unblemished throughout. Nothing has been placed on record to show a sudden decline in the work conduct of the appellant so as to have compulsorily retired him;
+ However, sometime later, the respondents withheld the vigilance clearance given earlier on the ground that there was an adverse IB Report against the appellant. It is not out of place to mention here that the aforesaid adverse IB report had also arisen from the complaint received from the appellant's wife during the very same matrimonial dispute which had already been amicably settled in Court. The factum of the said settlement was well within the knowledge of the respondents, who had stated in O.M. dated 15th July, 2015 that "the alleged acts of bigamy against Shri Bajaj emanating from matrimonial dispute is not established". Aggrieved by the withholding of his vigilance report, the appellant had approached the Tribunal for relief in OA No.95 of 2016. Vide interim order dated 10th February, 2017, the Tribunal directed the respondents to resubmit the adverse IB report in respect of the appellant before the Selection Committee within one month for the said Committee to take a view in the matter. As noted earlier, the aforesaid order dated 10th February, 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;
+ 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;
+ It is noteworthy that the appellant had challenged the proceedings initiated against him by the respondents on the basis of the inspections conducted on 29th and 30th November, 2017 in OA No.77 of 2018. In the said proceedings, the Tribunal had passed an interim order on 2nd February, 2018 directing that the said proceedings will not come in the way of promotion, appointment and deputation prospects of the appellant. Regardless of the above directions, the respondents not only denied vigilance clearance to the appellant on 20th April, 2018 they went a step ahead and proceeded to place his name in the "Agreed List" i.e., the list of suspected officers. This act of the respondents was also assailed by the appellant before the Tribunal in O.A. No. 279 of 2018. Ultimately, both the captioned Original Applications were collectively decided by the Tribunal in favour of the appellant by a detailed judgement dated 6th March, 201, which has not been stayed by any superior Court;
+ 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 into the allegations levelled in the said Charge Memorandum; all the same, we have cursorily gone through the Charge Memorandum that mentions three charges - one alleging that the appellant failed to seek permission from the department to purchase a flat in relation to the matrimonial dispute between him and his estranged wife and the second one is in respect of the allegation of bigamy levelled against him by his estranged wife. We have already noted earlier that during the course of the matrimonial dispute, the parties had arrived at a settlement and the flat that was agreed to be given to the wife, was not purchased by the appellant but by his brother, which fact is amply borne out from the documents placed on record. The matrimonial dispute between the parties stood closed on a decree of divorce being granted on the basis of mutual consent. That the respondents were also cognizant of the said fact, is apparent from the contents of O.M. dated 15th July, 2015 which records inter alia that the said allegations levelled by the wife had not been established. The third charge was relating to the appellant having attended Court hearings without sanctioned leave. However, the disciplinary proceedings initiated against the appellant on 17th July, 2019 were abandoned by the respondents on the order of compulsory retirement being passed against him in less than three months reckoned therefrom, on 27th September, 2019;
+ 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 such decision till the very fag end of his career. The impugned order of compulsory retirement was passed in this case on 27th September, 2019 whereas the appellant was to superannuate in ordinary course in January, 2020. There appears an apparent contradiction in the approach of the respondents who had till as late as in July, 2019 continued to grade the appellant as 'Outstanding' and had assessed his integrity as 'Beyond doubt'. But in less than three months reckoned therefrom, the respondents had turned turtle to arrive at the conclusion that he deserved to be compulsorily retired. If the appellant was worthy of being continued in service for little short of a decade after he had attained the age of 50 years and of being granted an overall grade of 9 on the scale of 1 - 10 on 31st July, 2019 it has not been shown as to what had transpired thereafter that made the respondents resort to FR 56(j) and invoke the public interest doctrine to compulsorily retire him with just three months of service left for his retirement, in routine. In such a case, this Court is inclined to pierce the smoke screen and on doing so, we are of the firm view that the order of compulsory retirement in the given facts and circumstances of the case cannot be sustained. The said order is punitive in nature and was passed to short-circuit the disciplinary proceedings pending against the appellant and ensure his immediate removal. The impugned order passed by the respondents does not pass muster as it fails to satisfy the underlying test of serving the interest of the public.
- Appeal allowed: SUPREME COURT OF INDIA |
|
