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2011 DIGILAW 516 (GUJ)

HARSHADBHAI A BHATT v. UNION OF INDIA

2011-07-05

G.B.SHAH, V.M.SAHAI

body2011
JUDGMENT (Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. We have heard Mr P.H. Pathak, learned counsel for the petitioner and Mr Ketan A Dave, learned counsel for respondent No.2. This Special Civil Application has been filed by the petitioner challenging the order dated 2.11.2001 passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in Original Application No. 330 of 1995. 2. The facts of the case in brief are that the petitioner was working with the respondent department. He was appointed as Telephone Operator w.e.f. 8.9.1964 at Chalala, District Amreli. The petitioner was confirmed as Telephone Operator in 1972. The petitioner was allowed to cross Efficiency Bar from 1.9.1983 and was promoted to the higher grade in the year 1991 by the Departmental Promotion Committee. In the year 1995 the petitioner was again promoted and was given higher grade. In the career of the petitioner, only once the petitioner was served with adverse remarks at the initial stage of appointment and thereafter there was no serious charges levelled against the petitioner except in two three cases minor penalty of censure or stoppage of increment without cumulative effect for 3 years was imposed. Once the petitioner was communicated about one adverse remarks in his Confidential Report. The petitioner was discharging his duties satisfactorily. However, he was served with a notice dated 18.1.1995 informing him that on his completing of thirty years' qualifying service the petitioner shall be compulsorily retiring from service. He was given three months' notice. The petitioner made representation before respondent which was rejected. Hence the petitioner filed O.A. No.330 of 1995 before the Central Administrative Tribunal (for short, "the Tribunal".) The Tribunal by its order dated 2.10.2001 dismissed the Application of the petitioner. This order of the Tribunal is challenged in this Special Civil Application. 3. Learned counsel for the petitioner Mr P H Pathak has submitted that the Tribunal has failed to appreciate the settled legal position that an order of premature retirement should be based on the overall performance and the entire service record of the employee and this amounts to non-application of mind by the competent authority to compulsory retire the petitioner. He has further submitted that the petitioner was discharging his duties satisfactorily and he was not a dead wood which can be chopped off while exercising power under Rule 48 of the CCS (Pension) Rules. He has further submitted that the petitioner was discharging his duties satisfactorily and he was not a dead wood which can be chopped off while exercising power under Rule 48 of the CCS (Pension) Rules. The fact that the petitioner was confirmed as Telephone Operator in 1972 and was allowed to cross Efficiency Bar from 1.9.1983 and was promoted to the higher grade in the year 1991 by the Departmental Promotion Committee and even he was given higher grade in 1995 show that there was no complaint against the petitioner. Communication of one adverse entry in the C.R. of the petitioner and imposing of minor penalty of 'censure' or stoppage of increment cannot be a valid ground for compulsorily retiring an employee who had put in 30 years of service. He has submitted that it is well settled principles of law by the Apex Court that the powers can be exercised if only the employee is found dead wood or his integrity is doubtful. He has further submitted that under FR 56 (j) or Rule 48 of the CCS (Pension) Rules, 1972 or CSR 459 (h), case of a Government servant has to be reviewed six months before he attain the age of 50 or 55 years or complete 30 years of qualifying service whichever occurs earlier. The learned counsel has vehemently argued that while deciding or recommending a case of compulsory retirement, the Review Committee has to follow the under mentioned criteria: "...while the entire service record of an officer should be considered at the time of review, no employee should ordinarily be retired on the grounds of ineffectiveness if his service during the preceding 5 years or where he has been promoted to a higher post during that 5 years period his service in the highest post has been found satisfactory. No employee should ordinarily be retired on the 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." The learned counsel further submitted that the order passed by the respondent is arbitrary, discriminatory and vitiated by malafides and hence the order of the Tribunal deserves to be quashed and set aside. 4. 4. Mr K A Dave, learned counsel for the respondent has submitted that the petitioner has been ordered to prematurely retire from service on completion of 30 years w.e.f. 8.9.1994 by the competent authority in exercise of powers conferred under Rule 56 (j) (ii) of the Fundamental Rules read with Rule 48 of the Central Civil Services (Pension) Rules, 1972 (for short, "the Rules") in public interest on the basis of recommendation of the High Power Committee for consideration of retention of service. The High Power Committee after considering the entire service record of the petitioner and after following necessary formalities prescribed under relevant Rules issued by the department, decided to retire him prematurely . On the basis of the recommendations made by the High Power Committee and considering the service records, Telecom District Engineer who is the competent authority and appointing authority had issued order dated 18.1.1995. He has further submitted that the power to retire an employee in terms of service Rules is absolute with regard to the competent authority to form a bona fide opinion and it is necessary to pass an order of compulsory retirement in public interest and on consideration of the totality of the facts and circumstances the competent authority has formed an opinion that the petitioner was required to be retired from service compulsorily in public interest. Further the pros and cons of public interest as against the individual interest and as such the petitioner has failed to make out any case for judicial review of the administrative order issued by the competent authority in exercise of powers conferred under the Rules and Regulations. In support of his submission, learned counsel for the respondent has relied on the observations made by the Supreme Court in Post and Telegraphs Board and others v. C.S.N. Murthy ( AIR 1992 SC 1368 ) in para 5 as under: "...As has already been pointed out, an order of compulsory retirement is not an order of punishment. Fundamental Rule 56 (j) authorises the Government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service if, in its opinion, public interest call for such an order. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the Government to decide. The nature of the delinquency and whether it if of such a degree as to require the compulsory retirement of the employee are primary for the government to decide upon. The Court will not interfere with the exercise of this power, if arrived at bona fide and on the basis of material on the record….” The learned counsel has further submitted that if para 3 of the order dated 2.10.2001 passed in OA No.330/95 by the Tribual is perused, it appears that the Tribunal has categorically mentioned in it that in order to judge the respective assertions they have called for the records relating to the petitioner. After perusing the said records, the Tribunal, in para 4 of its above referred judgment has observed in detail which reads as under: "The ACR of the applicant were made available from 8.9.1964 i.e. from the date of the appointment of the applicant. In the initial stage of service, there were some adverse report against the applicant, e.g., in his ACR from 8.9.64 to 31.3.65 an entry was made to the effect "You are too poor in the work of Telephone Operator. You should pick up the work early" . Similarly in 1966-67, 67-68 and 68-69 there were adverse entries about receiving of oral complaint on the delay in putting through calls and offical was asked to be careful. similarlythere was also an order dated 28.11.69 whereby his increment was stopped for three years without effecting his future increment because of violation of departmental telephone instruction.A special entry was made in the year 1971 for the service rendered by the applicant at the time of flood in running the communication. In the year 1970-71 there was an adverse entry for receiving complaint of late attendance and giving wrong number and official was alreadywarned. No adverse entry was there in the year 1971-72 for not attending at night. Thereafter no adverse entry was made in the ACR from 1.4.72 onwards. In 1972-73 he was shown as Average. On the other hand the general performance was satisfactory and good. No adverse entry was there in the year 1971-72 for not attending at night. Thereafter no adverse entry was made in the ACR from 1.4.72 onwards. In 1972-73 he was shown as Average. On the other hand the general performance was satisfactory and good. In the year 1974-75 on his comment of his ability was shown to be satisfactory and disciplined. In column 11 as the ability to operate knowledge of ranks etc. were recorded as satisfactory. In column 12 against general performance it was recorded as satisfactory. Surprisingly an entry in different ink was found showing "He was severe (sic) warned for negligence vide 500T/S&W Memo No. G 195/55dated 18.5.74". The said note was unsigned. There was no materials to show and establish to the effect that the said entries were ever communicated to the applicant. The subsequent CR did not indicate about anything adverse. In 1.4.79 to 31.3.80, 1.4.80 to 31.3.81, 1.4.81 to 31.7.81, 1.8.81 to 31.3.82, 1.4.82 to 31.12.82 upto 31.3.83, 1.4.83 to 30.4.84, 1.4.85 to 31.3.86 the applicant was shown to be fit for promotion. In the CR on and from 1.4.86 to 31.3.87, 1.4.87 to 31.3.88, 1.4.88 to 31.3.89 the official was shown fit for promotion. In the year 1989 a charge sheet was issued to the applicant and he was censured by order dated 4.8.89. In the ACR 1.4.89 to 31.3.90 integritywas shown beyond doubt and mentioned as fit for promotion. So also ACR 1.4.90 to 31.3.91 so also the ACR 1.4.91 to 31.3.92. Similar his ACR of 1.4.91 to 31.3.92 the official was described as fit for promotion and integrity was shown beyond doubt. In 1.4.93 to 31.3.94 by an order dated 10.6.92 the applicant was imposed penalty of withholding one increment without cumulative effect and ordered for recovery of Rs.270 for the loss of revenue. An appeal was preferred against the said order imposing penalty before the Appellate authority and appeal was rejected vide order dated 23.5.1994." Learned counsel for the respondent has then submitted that the petitioner was punished vide order No.XQ-44/4 dated 4.8.1989 and was charge sheeted for the charges of putting through trunk calls without trunk-calls tickets for which he was given warning and penalty of 'Censure' was imposed. By order dated 10.6.1992 after the departmental inquiry, a penalty of withholding of one increment for a year with an order of recovery of loss of Government revenue was also passed which was upheld in appeal by the Appellate Authority as well as the Review Committee and as such penalty of 'Censure' was imposed. 5. It is pertinent to note that the petitioner was promoted vide orders dated 30.11.1983 and 30.11.1990 respectively after completion of 16 years of service and 26 years of service and the said promotions were time bound ones and accordingly the promotion orders were issued. Referring to the copy of the order, it appears that it has been specifically observed by the respondent officials that the charges levelled against the petitioner was of serious nature. However, a minor penalty was imposed with a hope that this punishment will have a corrective effect on the petitioner. But referring to the conduct of the petitioner, it appears that the hope of the respondents officials were not fulfilled by the petitioner. The petitioner was again punished by Memo No. XQ-34/4 dated 10.6.1992 for misconduct and misuse of his position as a Government servant. In this connection he was charge sheeted and the charges were proved in the departmental inquiry and he was punished with penalty of withholding of one increment for one year without cumulative effect and an amount of Rs.270/-was rercovered from his pay as loss to the department. The appeal preferred by the petitioner against the above referred orders was rejected by the Appellate Authority vide order dated 23.5.1994. The petitioner has preferred further proceedings before the Review Committee against the above referred decisions of the Appellate Authority and the Review Committee had also rejected the representation of the petitioner vide order dated 22.3.1995. 6. It is well settled legal position that an order of premature retirement should be based on the over all performance and the entire service record of the employee. We have considered the orders issued for the present petitioner's premature retirement which is quite justified and it does not require any interference. It is an admitted fact that the petitioner was punished vide order No.XQ-44/4 dated 4.8.1989 and was charge sheeted for the charges of putting through trunk calls without trunk-calls tickets for which he was given warning and penalty of 'Censure' was imposed. It is an admitted fact that the petitioner was punished vide order No.XQ-44/4 dated 4.8.1989 and was charge sheeted for the charges of putting through trunk calls without trunk-calls tickets for which he was given warning and penalty of 'Censure' was imposed. Perusal of the order dated 4.8.1989, it appears that the charges against the petitioner was of serious nature. It also appears that the respondent official has observed that though the charges against the petitioner was of serious nature,, a lenient view was taken and minor penalty was imposed with a hope that the said punishment will have a corrective effect on the petitioner. It is also an admitted position that the appellant was again punished vide Memo No. XQ-34/4 dated 10.6.1992 for misconduct and misuse of his position as a Government servant with a penalty of withholding of one increment for one year without cumulative effect and to recover an amount of Rs.270/-from the petitioner's salary towards revenue loss caused to the department. The petitioner has challenged the said order dated 10.6.1992 which was rejected by the Appellate Authority vide order dated 23.5.1994. According to the learned counsel for the petitioner, the above referred penalty was minor and as the integrity of the appellant was not doubtful, the petitioner cannot be said to be a dead wood who was required to be chopped of. 7. Considering the above discussed factual aspects along with the over all performance and the entire records narrated by the Tribunal in para 4 of its order, we do not find ourselves in agreement with the submissions made by the learned counsel for the petitioner. Under Rule 48 of the CCS (Pension) Rules, 1972, the premature retirement can be effected irrespective of age after the employee has completed 30 years of qualifying service and thus there appears no force in the submission in the learned counsel for the respondent that the appellant has not attained the age of 55 years. The respondent official has clearly stated on oath that the petitioner was a SGTO, CTX in the SSA cadre and the Telecom District Engineer being the appointing authority is also the appropriate authority for issuing the order of premature retirement. The respondent official has clearly stated on oath that the petitioner was a SGTO, CTX in the SSA cadre and the Telecom District Engineer being the appointing authority is also the appropriate authority for issuing the order of premature retirement. In para 7 of the order of the Tribunal dated 2.10.2001at Annexure 'D', the said point had been dealt with by the Tribunal and we find ourselves in agreement with the same as nothing adverse has been forthcoming on record to take a different view. 8. Learned counsel for the petitioner has relied on the observations made by the Apex Court in Swami Saran Saksena v. State of Uttar Pradesh (1980) 1 SCC 12 . In para 3 the Apex Court has held as under: "In the present case, however, although for the purpose of crossing second efficiency bar the appellant was considered to have worked with distinct ability and with integrity beyond question, yet within a few months thereafter he was found so unfit as to deserve compulsory retirement. The entries in between in the records pertaining to the appellant need to be examined and appraised in that context. Thee is no evidence to show that suddenly there was such deterioration in the quality of the appellant's work or integrity that he deserved to be compulsorily retired. For all these reasons the order of compulsory retirement should be quashed. The appellant will be deemed to have continued in service on the date of the impugned order. (para 3)" 9. In the case on hand, after crossing the Efficiency Bar we.f. 1.9.1983 because of the conduct of the appellant penalty was imposed on him in the year 1989 and 1992 and considering the same, in our view, the observations made by the Supreme Court in the above referred case will not be of any assistance to the petitioner. In the case on hand, after crossing the Efficiency Bar we.f. 1.9.1983 because of the conduct of the appellant penalty was imposed on him in the year 1989 and 1992 and considering the same, in our view, the observations made by the Supreme Court in the above referred case will not be of any assistance to the petitioner. Moreover, the respondent had given one time bound promotion on 30.11.1983 to the petitioner after completion of 16 years of service and another promotion on 30.11.1990 after the petitioner had completed 26 years of service and thereafter also the petitioner was punished vide order dated 10.6.1992 and thus the submissions made by the learned counsel for the petitioner that as the two promotions had been given after considering the overall conduct of the petitioner, the order passed by the department for compulsory retirement is arbitrary and not maintainable in the eye of law, cannot be accepted. 10. Learned Counsel for the petitioner has further relied on another decision in Swaran Singh Chand v. Punjab State Electricity Board & Ors. ( AIR 2010 SC 151 ) in which the issue was whether an order of compulsory retirement being a stigmatic one would be valid in law. In para 9, it has been decided that if an order of compulsory retirement is stigmatic in nature, the same would be bad in law. Further it also has been observed in para 13 whether the statement in the order is stigmatic or not will have to be judged by adopting the test of how a reasonable person would read or understand it. The ratio laid down in para 16 of the said decision reads as under: "The learned counsel appearing on behalf of the respondent would contend that the principles of natural justice are not required to be complied with in a case of compulsory retirement, particularly, when no mala fide is alleged. Allegation against the delinquent was not only that he lacked integrity but also unfit to be retained in service. Those comments, in our opinion, are stigmatic in nature." 10.1. The order of compulsory retirement passed by the respondent is at Annexure 'C' at page No.15. We have perused the same. The language of the same does not contain any element which can be said to be stigmatic in nature. Those comments, in our opinion, are stigmatic in nature." 10.1. The order of compulsory retirement passed by the respondent is at Annexure 'C' at page No.15. We have perused the same. The language of the same does not contain any element which can be said to be stigmatic in nature. We have also perused the entire records and proceedings along with the order dated 2.11.2001 passed by the Tribunal in OA No.330/1995. We do not find any illegality or infirmity in the said order passed by the Tribunal. 11. In the result, this Special Civil Application is devoid of merit and is accordingly dismissed. The order dated 02.11.2001 passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in Original Application No. 330 of 1995 is confirmed. There shall be no order as to costs.