JUNE 19, 2019

By Vijay Kumar

THERE is a general perception that no action is taken against the defaulting tax officials for their non performance as well as in case of harassing the tax assessees among others. The present Government has taken various steps to change this perception following the principle of good governance. After the present Government took over, it has taken strict action against such revenue officers/officials in order to fix their accountability.

For the first time, 33 officers/officials of the Revenue Services, including seven Group 'A' officers, have been prematurely retired for non-performance under Rule 56(j). Further, 72 officers/officials have been dismissed including six Group 'A' officers, in other departmental/disciplinary actions in the last two years.

No, this is not the latest news. This is from a PIB Press Release dated 5 th May 2016 - yes more than three years ago. But then the PIB did not reveal the names of the officers prematurely retired.

In July 2016, I asked the Revenue Department the following questions under the RTI Act,

1. Please furnish the list of officers compulsorily retired from the Revenue Department, both direct taxes and indirect taxes during the last two years till date of furnishing the information.

2. Please furnish the list of officers who have obtained Stay orders against the orders of compulsory retirement.

The Department sent my questions to the CBEC and CBDT and several sections of the Department. The CBEC sent my request to all the Commissioners who sent it to their Divisions. I was flooded with letters by Speed Post from hundreds of field officers informing me that no officer was compulsorily retired from their office. One Assistant Commissioner even sent me a letter asking me to pay another ten rupees as fee for answering my questions. Anyway, the CBEC and CBDT which had the information cleverly avoided answering me.

In exercise of the powers conferred by Clause (j) of Rule 56 of the Fundamental Rules, the President of India has retired 15 officers of Indian Revenue Service (IRS)(C&CE) in public interest with immediate effect on completing 50 years of age. These Officers are of the rank of Principal Commissioner, Commissioner, Addl. Commissioner, Dy. Commissioner and Assistant Commissioner etc.

Yes, this is the latest news. This is from a Press Release issued by the PIB yesterday.

This time around, the PIB has also given the names of the officers compulsorily retired, saving me the trouble of asking for the names. Anyway, after last time, I am wiser and understand that the babus can successfully hide even the most public information.

This news as well as the previous one a few days ago regarding a similar action under CBDT has rattled the Revenue officers.

Heading the list released by PIB yesterday is the President of the IRS (Customs & IT) Association. All the retired officers are facing corruption charges, but the President of the Association says that his compulsory retirement is made with mala fide intentions as he was promoted six months ago as Principal Commissioner and was being considered for further promotion as Chief Commissioner. Somebody who was considered good enough for a higher position six months ago, has suddenly become unworthy of the government job.

On 3 rd June 2019, the President of the IRS (Customs & IT) Association met the new Finance Minister to greet her on her appointment as Finance Minister. Yesterday, he was sent out of service on Compulsory Retirement along with 14 other IRS officers, just a few days after the Government had axed a dozen senior Income Tax officers.

Dreaded Compulsory Retirement: Rule 56(j)  was a terrifying word during the emergency and some years after that for Government employees. As per Rule 56(j) of the Fundamental Rules,  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.

Under this rule, several employees were sent home on what came to be known as 'compulsory retirement'. This was a method for the Government to weed out unwanted elements in Government service. Compulsory retirement is not a punishment as such. The officer will get all his pensionary benefits. He would be more than 50 years of age and so would lose less than ten years of government service.

The Supreme Court once observed,

Rule 56(j) is not intended for taking any penal action against the government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Art. 310 of the Constitution.

Why Compulsory Retirement?

1. Various considerations may weigh with the appropriate authority while exercising the power conferred under the rule.

2. In some cases, the government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer.

3. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there.

4. There is no denying the fact that in all organizations and more so in government organizations, there is good deal of dead wood. It is in public interest to chop off the same.

5. Fundamental Rule 56(j) holds the balance between the rights of the individual government servant and the interests of the public.

6. While a minimum service is guaranteed to the government servant, the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest.

The Supreme Court in S. Ramachandra Raju vs. State of Orissa observed,

The officer would live by reputation built around him. In an appropriate case, there may not be sufficient evidence to take punitive disciplinary action of removal from service. But his conduct and reputation is such that his continuance in service would be a menace to public service and injurious to public interest.

In State of U.P and Others vs Vijay Kumar Jain, the Apex Court observed,

If conduct of a government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the government has an absolute right to compulsorily retire such an employee in public interest.

The law relating to compulsory retirement

In State of Gujarat Vs. Umedbhai M. Patel - 2002-TIOL-2662-SC-SERVICE, the Supreme Court observed,

The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus :

(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

(iii) For better administration, it is necessary to chop off dead-wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.

(v) Even uncommunicated entries in the confidential record can also be taken into consideration.

(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.

(viii) Compulsory retirement shall not be imposed as a punitive measure.

Is this compulsory retirement an effective method? In the earlier experiments when Revenue officers were compulsorily retired, they all came back through Court orders and continued their activities with double vigour, because the Government in its anxiety to chop off the heads had not followed the Procedure completely and thoroughly.

But who will recommend the heads to be chopped? Corruption and incompetence are co-operative ventures in the Government. The honest employees are alone, but the corrupt are united and powerful. Will a corrupt boss recommend compulsory retirement for his equally corrupt accomplice subordinate?

IRS Officer's Compulsory Retirement Quashed

He is a 1977 batch officer of the IRS (Income Tax). He earned his promotions to the posts of Deputy Commissioner, Joint Commissioner, Additional Commissioner and then Commissioner, Income Tax, which undoubtedly implied that he had been assessed as a meritorious officer, suitable and fit for the said posts. The next promotion was to the post of Chief Commissioner or Director General of Income Tax. However, he was issued a preliminary show cause notice dated 7th November, 2000 seeking an explanation regarding alleged lapses/irregularities in eight cases, out of which six cases were completed by him as Deputy Commissioner (Assessment/Assessing Officer) and remaining two, were pertaining to the period when he was the Deputy Commissioner-in-charge of the Range.

After protracted departmental proceedings, and while the matter was pending in the High Court, the Department compulsorily retired him.

The Central Administrative Tribunal set aside the punishment of compulsory retirement and ordered reinstatement of the officer, with costs of Rs.10,000/- for putting him through such a long agonizing departmental enquiry and that too for assessment orders passed by him in his quasi-judicial capacity.

The Department challenged the orders of the Tribunal. The Delhi High Court upheld the orders of the Tribunal fully and imposed further costs of Rs.30,000/-. - 2012-TIOL-284-HC-DEL-SERVICE

Judge loses job for awarding less than the minimum sentence in Customs Case

In this strange case, a Judge lost his job for awarding a sentence less than the minimum prescribed under the Customs Act. The Chief Judicial Magistrate at Bhuj delivered a judgement in two Customs cases on 22 January 1997 awarding sentence of imprisonment to 12 accused persons. The sentence of imprisonment was less than the minimum stipulated under Section 135 of the Customs Act. Moreover, the sentence of imprisonment was so structured that after allowing the benefit of a set-off, the accused was not required to remain in jail for a further period. The accused were alleged to be involved in the smuggling of 275 silver slabs of a value of Rs. 5,86,50,620/-.

The Judge was charge-sheeted alleging that:

- The judge who was a senior judicial officer was aware of the provisions of Section 135 which prescribe the award of at least a minimum sentence.

- The case involved smuggling of a huge quantity of contraband articles.

- The Judge was aware of judicial decisions mandating that a liberal view should not be taken in the award of sentences in such cases. Yet, with the intention of favouring the accused, the Judge awarded less than the minimum sentence without recording special or adequate reasons.

It was charged that:

- He was guilty of indulging in Corrupt-practice.

- He was guilty of dereliction in discharging his judicial functions.

- He acted in a manner unbecoming of a Judicial Officer.

After a due process of disciplinary proceedings, the Judge was dismissed from service on 14 th July 2009.

The judge approached the High Court which observed:

- The charge of misconduct in Disciplinary Inquiry was based on evidence and it could not be held that the conclusions of the Disciplinary Committee, which were adopted by the Full Court, were based on no evidence.

- The Appellant was a judicial officer since 1982, and had worked for nearly fourteen years as a Judge. While dealing with offences under the Customs Act 1962, he was expected to refer to the penal provisions under which punishment was being handed down after recording a conviction.

- The stand of the Appellant appeared to be that he awarded the sentence without being aware of the statutory provisions.

- The criminal case with which the Appellant was dealing was not the first case involving an offence under Section 135. That despite the minimum punishment prescribed under Section 135, the Appellant awarded less than the minimum in the case of several accused. No reasons appeared from the judgment for the grant of differential treatment to some of the accused. More significantly, the punishments awarded to all the accused were structured in such a manner that none of the accused would have to serve any further sentence, after accounting for the set-off for the period spent in jail as under-trial prisoner.

- The punishment of dismissal was not disproportionate to the charge of misconduct which has been found to be established.

The Judge appealed to the Supreme Court.

The Supreme Court agreed with the High Court that the Judge paid no heed whatsoever to the provisions of Section 135. The Supreme Court changed the punishment from dismissal from service to compulsory retirement. Please see - 2016-TIOL-78-SC-MISC-LB

Most probably all the compulsorily retired officers are already on their way to the nearest CAT Bench.

It is very difficult to get a government job; it is more difficult to lose it; some people manage to do both easily.

Until next week