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2012 DIGILAW 1339 (GAU)

Union of India v. Sailendra Kumar Singh

2012-12-14

I.A.ANSARI, S.C.DAS

body2012
JUDGMENT Iqbal Ahmed Ansari, J. 1. We have heard Mr. M. Bhagawati, learned counsel for the petitioner, and Mr. R. Mazumdar, learned counsel, appearing on behalf of the respondent. By the order, dated 25.05.2012, passed, in Original Application (in short, 'OA') No. 48/2011, by the learned Central Administrative Tribunal, Guwahati Bench, the learned Tribunal has set aside and quashed the order, dated 31.01.2009, whereby the petitioner (as respondent in OA No. 48 of 2011) had, by invoking their power under FR 56(J), compulsorily retired the respondent herein from service. By its order, dated 25.05.2012, the learned Tribunal has also set aside and quashed the order, dated 19.10.2010, which the present petitioner (as respondent in OA No. 48 of 2011) had passed dismissing the appeal/representation of the respondent herein, which the respondent herein had made as against the order, dated 31.01.2009, aforementioned, whereby the respondent herein, as mentioned hereinbefore, stood retired. By the order, dated 25.05.2012, aforementioned, the learned Tribunal has further directed that the respondent herein be reinstated in service and he shall be entitled to all consequential benefits. Aggrieved by the order, dated 25.05.2012, so passed by the learned Tribunal, the petitioner (who was respondent in OA No. 48 of 2011), has come to this Court with the present application made under Article 226 of the Constitution of India. 2. Considering the fact that it is the order, dated 31.01.2009, whereby the respondent herein (who is hereinafter referred to as the 'applicant-respondent') was retired from service by taking recourse to FR 56(J), we reproduce hereinbelow the order, dated 31.01.2009: Adm. review Committee of Northern Sector, CRPF, New Delhi held on 30.09.2008 has examined the case of No. 761590034 Pharmacist S.K. Singh of 9th Bn CRPF, who has completed 55 years, 06 months and 24 days of age as on 31.01.2009 and found him unfit for further retention in service. 02. Now, therefore, in exercise of the powers conferred in me by clause (j) of FR-56 read with Appendix X of C.C.S. (Pension Rules), 1972 and Para-09 of CRPF Standing Order No. 74/2001, I the undersigned, retires the said No. 761590034 Pharmacist S.K. Singh prematurely w.e.f. 1.2.2009 (FN) i.e. in public interest on completion of 55 years of age by him for pension. No. 761590034 Pharmacise S.K. Singh shall be paid a sum equivalent to the amount of his usual pay and allowances for a period of 03 months in lieu of notice period calculated at the same rate at which he was drawing immediately before his retirement. He is also struck off from the strength of 09 Bn CRPF, from the same date i.e. 01.02.2009 (FN) (Emphasis is added) 3. Aggrieved by the order, dated 31.1.2009, the respondent herein preferred an appeal. As the appeal remained pending with the present petitioner and no decision, on the same, was rendered, the appellant (i.e., respondent herein) filed OA No. 14 of 2010, which was disposed of, on 17.05.2010, by the learned Tribunal directing the petitioner herein to dispose of the appellant's (i.e., respondent herein) said appeal/representation strictly in accordance with the Rules and instructions, on the said subject, by making a speaking order. 4. Having considered the appeal/representation of the applicant/respondent in terms of the learned Tribunal's order, dated 17.05.2010, passed in OA No. 14 of 2010, the present petitioner passed an order, dated 19.10.2010, rejecting the applicant-respondent's said appeal/representation by holding that the same was devoid of merit and that the action, taken by the Department, compulsorily retiring the applicant/respondent from service, was in order. The order, dated 19.10.2010, rejecting the appeal/representation, read as follows: ORDER No. 761590034 Pharmacist S.K. Singh of 9th Bn CRPF filed OA No. 14/2010 at Hon'ble Central Administrative Tribunal, Guwahati Bench challenging the finding of review committee held at 30.09.2008 which led to passing of order dated 31 January, 2009 for his premature retirement from Government Service. 2. The instant OA 14/2010 came up for hearing before the Hon'ble Court and the order dated 17.05.2010 disposed of the OA with direction to consider the aforesaid appeal/representation strictly in accordance with rules and instruction of the said subject by passing a speaking order within a period of two months from the date of receipt of this order. On disposal of aforesaid appeal/representation, the respondents should regulate his retirement dues, if any as per rules and law. 3. On disposal of aforesaid appeal/representation, the respondents should regulate his retirement dues, if any as per rules and law. 3. As per instructions contained in FR 56(J), Rule 48 of the CCS Pension Rules 1972 and CSR 459(H), a Administrative Review Committee under chairmanship of the IGP N/S constituted on 30.09.2008 to examine the case of Northern Sector personnel who have completed/rendered 25 years of service or attained 50 years of age for administrative review of service records. The review committee examined/scrutinized the case of all Northern sector personnel and found that No. 76590034 Pharmacist S.K. Singh of 9th Bn CRPF was a habitual offender, as he committed subsequent indiscipline act during the span of service. (a) while he was posted in GC Mokamaghat, he was ordered to be relieved from GC Mokamaghat w.e.f. 13.05.06 with direction to report to Dett Hqr 147 Bn CRPF on attachment duty, but after reading the contents of the said order, he refused to receive the same and told that he would receive it later. Thereafter, he did not report for duty from next day i.e. w.e.f. 13.05.2006. Owing to his willful absence from duty and also disobedience of lawful orders, Departmental proceeding was started against him by the GC Mokamaghat, CRPF. As a result of D.E. he was awarded punishment of compulsory retirement w.e.f. 2.3.07. The appellate authority i.e. DIG Patna set aside the above order of compulsory retirement and imposed punishment of stoppage of one increment for one year without cumulative effect on applicant representation. Further as a result of review of the case the IGP Bihar Sector has set aside the punishment order of DIGP CRPF and awarded punishment of withholding of one annual increment for a period of three years without cumulative effect keeping in view of gravity of offence. While above said disciplinary proceedings was pending against the applicant he filed a CWJC No. 13479/2006 before Hon'ble High Court of Patna to justify the offence committed by the applicant as well as his absence that too completely on the false grounds. Hon'ble High Court of Patna was pleased to dismiss the said CWJC of applicant vide their judgment dated 23.4.07. (b) During his tenure in 9th Bn deployed in Assam he was deputed to coys from time to time to provide medical facilities/care/assistance to coys personnel by the Commandant vide order No. M. III. Hon'ble High Court of Patna was pleased to dismiss the said CWJC of applicant vide their judgment dated 23.4.07. (b) During his tenure in 9th Bn deployed in Assam he was deputed to coys from time to time to provide medical facilities/care/assistance to coys personnel by the Commandant vide order No. M. III. 1/07-08-CB-9 dated 7.6.08, 18.7.08, as the unit and its coys were deployed in Malaria prone areas. To shirk the responsibilities and to avoid duties entrusted to him, in the absence of Medical Officer, on 6.6.08 and 9.6.08 he referred himself to Mangaldai Civil Hospital by mentioning his name in referral register of Unit MI room for treatment of Arthritis and diabetes without prior intimation or knowledge of the Competent Authority. Besides, he under his own signature referred himself to CH CRPF Guwahati for further treatment as he was not authorized to sign on official letter. Without intimation he left camp on 10.6.08 so a complaint was lodge in PS Mangaldai, NOK was informed keeping in view prevalent situation in the state. Later on information was received from Ch CRPF Guwahati that he reported there for treatment on 10.6.08. After completion of treatment he reported back at Bn on 8.7.08. His period of absence/hospitalization was regularized by the competent authority according to rules and instructions. 4. The Administrative Review Committee after examining service record as well as Annual Confidential Reports and other records related to service of above Pharmacist found him unfit for retention in service in disciplined force Government service. On the basis of recommendation of Administrative Review Committee No. 761590034 Pharmacist S.K. Singh of 9th Bn CRPF was retired prematurely from service vide DIGP GC-I Ajmer, CRPF Office order No. C. III. 2/09/EC-III dated 31.1.09 being appointing authority in accordance with instruction contained in 56(i) of FR and SR Part-I retired him w.e.f. 01/02/09(FN) vide order No. C. III-2/09-EC. III dated 31.01.09 with direction to Commandant 9th Bn to serve the above order to above Pharmacist along with Rs. 74,112/- as three months pay and allowances in lieu of notice period. 5. Aggrieved with above orders he preferred representation dated 14.2.09 against his premature retirement addressed to IGP, CRPF Northern Sector, New Delhi. Accordingly, his representation forwarded to representation committee headed by ADG (Trg.) Dte. General CRPF for deciding the premature retirement. 6. 74,112/- as three months pay and allowances in lieu of notice period. 5. Aggrieved with above orders he preferred representation dated 14.2.09 against his premature retirement addressed to IGP, CRPF Northern Sector, New Delhi. Accordingly, his representation forwarded to representation committee headed by ADG (Trg.) Dte. General CRPF for deciding the premature retirement. 6. Representation Committee considered his representation dated 14.2.2009 and after going through the record, ACR file etc and proceeding of Sector Administrative Review Committee, Northern Sector and found that Pharmacist S.K. Singh of 9th Bn, CRPF was a habitual offender, habitual of deserting from the camp and overstaying the sanctioned leave and found poor and unsatisfactory record of service. He was given ample opportunity several times to improve upon his performance, but he did not bother to do so and remained as it is. Further, he failed to bring any new facts to consider his representation otherwise. Keeping in view of above facts and taking into account of his indiscipline acts, representation submitted by No. 761590034 Ex. Pharmacist S.K. Singh of 9 Bn CRPF was REJECTED being devoid of merit and the action initiated by the department for his compulsory retirement from service is found in order. Sd/- ADDL. DIRECTOR GENERAL (TRG). (Emphasis supplied) 5. The respondent herein, then, by way of OA No. 48 of 2011, challenged the legality of the order, dated 31.01.2009, whereby the he had been retired by taking recourse to FR 56(J), and also the order, dated 19.10.2010, whereby the respondent's appeal/representation made against the order, dated 31.1.2009, was rejected. Since the learned Tribunal has allowed the OA and set aside the order, dated 31.01.2009, as well as the order, dated 19.10.2010, aforementioned, the respondent, in the OA No. 48 of 2011, has, now, approached this Court, as indicated above, with the present writ application. 6. While considering the present writ petition, it needs to be noted that the appropriate authority has, under FR 56(J), 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 notice if, in the opinion of the appropriate authority, it is in the public interest so to do. 7. 7. A bare reading of the order, dated 31.01.2009, whereby the petitioner was retired from service, while he was serving as Pharmacist, shows that his retirement, according to the order, dated 31.01.2009, itself, was on the ground that he was 'found unfit for further retention in service'. 8. Though the appropriate authority, as already pointed above, has the absolute right to retire a Government servant by invoking its right under FR 56(J), the order, so made, cannot be stigmatic or penal. 9. Considering the fact that by the order, dated 31.01.2009, aforementioned, whereby the respondent herein had been retired, mentions that he was 'found unfit for further retention in service', one cannot help, but hold that this observation, in the order, is highly stigmatic and the respondent's retirement, on such a ground, would leave not only stigma on the respondent, but would also amount to his removal from service, which, in turn, would be penal in nature. An order, which is claimed to have been made under Rule 56(J), but leaves stigma on a Government employee or which is, in reality, penal in nature, cannot be sustained, for, an order, which is either stigmatic or penal in nature, cannot be made without resorting to the procedure, which the Rules, relating to disciplinary proceedings, may, in a given case, prescribe. 10. Coupled with the above, the petitioner herein was directed by the learned Tribunal by its order, dated 17.05.2010, in OA No. 14 of 2010, to dispose of the appeal strictly in accordance with rules and instructions, on the subject, by making a speaking order. Pursuant thereto, the petitioner herein, as already pointed out above, passed the order, dated 19.10.2010, rejecting the appeal/representation of the respondent herein. This order shows that the authority, who passed the order, dated 19.10.2010, stated in the order as to why the Review Committee, on examination of the record of service of the petitioner, had retired him by taking resort to FR 56(J). The Review Committee, according to the order, dated 19.10.2010, found the petitioner as habitual offender inasmuch as he had committed acts of indiscipline during the span of service. 11. There are two acts, which have been specifically referred to in Clauses (a) and (b) of Para 3 of the order, dated 19.10.2010, aforementioned. The Review Committee, according to the order, dated 19.10.2010, found the petitioner as habitual offender inasmuch as he had committed acts of indiscipline during the span of service. 11. There are two acts, which have been specifically referred to in Clauses (a) and (b) of Para 3 of the order, dated 19.10.2010, aforementioned. One can also not ignore the fact that at Para 6 of the order, dated 19.10.2010, aforementioned, the authority concerned also observed that the respondent herein had not only been found a habitual offender, but he had also been found: .......habitual of deserting from the camp and overstaying the sanctioned leave and found poor and unsatisfactory record of service. He was given ample opportunity several times to improve upon his performance, but he did not bother to do so and remained as it is. 12. Even a cursory reading of the order, dated 19.10.2010, clearly demonstrates that there are, against the respondent herein, allegations, which amount to misconduct. Termination of service of a Government servant is not possible, for an act of misconduct, without taking resort to appropriate disciplinary proceedings. 13. The right, which is given to the appropriate authority by FR 56(J) is absolute in nature; but this right cannot be treated as a substitute for the onus, which the appointing authority has, of not removing a Government servant from his post for an act of misconduct without taking recourse to appropriate disciplinary proceeding. The reason is that misconduct is required to be proved. A Government servant cannot be condemned without being heard and without accusation of misconduct having been proved. 14. In substance and in reality, when the respondent herein was removed from service for acts of misconduct, his removal from service cannot be camouflaged by branding his removal as an act of retirement in exercise of appropriate authority's right under FR 56(J). 15. 14. In substance and in reality, when the respondent herein was removed from service for acts of misconduct, his removal from service cannot be camouflaged by branding his removal as an act of retirement in exercise of appropriate authority's right under FR 56(J). 15. We find that the learned Tribunal has taken note of the relevant facts and observed, at para 13, of its presently impugned order, dated 25.05.2012, passed in OA No. 48 of 2011, thus: After careful scrutiny of the papers as well as submissions of the learned counsel for the parties, we are of the view that although compulsory retirement is not a punishment, but in the instant case the ex parte departmental enquiry was conducted against the applicant for unauthorized absence and accordingly the order for compulsory retirement of the applicant was passed on 02.03.2007, however, subsequently, the said order was set aside and punishment order of stoppage of one increment for one year without cumulative effect was inflicted and the same was thereafter modified and punishment of withholding of one increment for a period of three years without cumulative effect was imposed on the applicant. Vide order dated 14.12.2007 the period of absence w.e.f. 13.05.2006 to 15.08.2007 had been treated as dies non for all purpose i.e. pay and allowances, increments, leave, pension etc. Thereafter, the applicant's period of unauthorized absence w.e.f. 10.06.2008 was regularized on 08.07.2008. However, in compliance with the order of the Tribunal the respondents passed the order dated 19.10.2010 confirming the compulsory retirement after taking into consideration the earlier offences of the applicant that he was a habitual offender, habitual deserter from the camp and overstaying the sanctioned leave etc. hence, it is amply clear that the authority although passed an order for compulsory retirement, but the same in fact, was issued as a measure of punishment, that too, against the charges for which the applicant had already been punished. Thus, this amounts to second punishment for the same cause. In our view the impugned orders dated 31.01.2009 and 19.10.2010 are unsustainable and the same are liable to be set aside and quashed. Accordingly, the aforesaid impugned orders are set aside and quashed. The respondents are directed to reinstate the applicant in service and he shall be entitled to all consequential benefits. (Emphasis is added) 16. In our view the impugned orders dated 31.01.2009 and 19.10.2010 are unsustainable and the same are liable to be set aside and quashed. Accordingly, the aforesaid impugned orders are set aside and quashed. The respondents are directed to reinstate the applicant in service and he shall be entitled to all consequential benefits. (Emphasis is added) 16. We do not find, on a careful examination of the above observations made by the learned Tribunal, that the inference, which the learned Tribunal has drawn, and the conclusions, which the learned Tribunal have reached, are incorrect. In other words, the learned Tribunal was wholly correct in taking the view that the order, dated 31.01.2009, was passed as a measure of punishment. Once the order is found to be penal in nature, such an order, even if mentions to have been made under FR 56(J), is not sustainable unless such an order is preceded by appropriate disciplinary proceeding. 17. Moreover, we have already held above that the order, dated 19.10.2010, is stigmatic in nature and it is not permissible for Government to pass any order, which leaves stigma on its employee without the Government resorting to appropriate course of law. 18. The reference made by Mr. R. Mazumdar, learned counsel, to the case of State of Uttar Pradesh Vs. Madan Mohan Nagar ( AIR 1967 SC 1260 ) is not misplaced inasmuch as Madan Mohan Nagar's case (supra) is a case, wherein the employee was retired from service, by resorting to FR 56(J), on the ground that 'he had outlived his utility'. Having noticed this, the Constitution Bench observed, in Madan Mohan Nagar (supra), that such an order casts stigma and amounts to removal from service inasmuch as the expression used, in the order of retirement, that the respondent had 'outlived his utility', meant that the employee was incapacitated from holding the post, which he was holding, and such an act order casts stigma on a person that there was something wrong in the person or he was incapacitated from working. 19. In fact, in Jagdish Mitter Vs. 19. In fact, in Jagdish Mitter Vs. Union of India, reported in ( AIR 1964 SC 449 ), the Court had observed that the order refers to the fact that the appellant had been found undesirable to be retained in service and these words expressly cast stigma on the person concerned and, in that sense, his retirement must be held to be an order of dismissal and not a mere order of discharge. It was made clear, in Jagdish Mitter (supra), that whenever an authority wants to terminate the service of an employee, it can pass a simple order of discharge without casting any aspersion on the employee or attaching any stigma to his character. As soon as it is shown that the order purports to cast an aspersion on the employee, it would be idle to suggest that the order is a simple order of discharge. In Jagdish Mitter (supra), while dealing with this aspect of the case, Gajenderagadkar, J, as His Lordship then was, speaking for the Supreme Court, said: .........The test, in such cases, must be: does the order cast aspersion on, or attach stigma to, the officer, when it is purported to discharge him? If the answer to this question is in the affirmative, then, notwithstanding the form of the order, the termination of service must be held, in substance, to amount to dismissal. 20. Even in the case of Allahabad Bank Officers' Association & Anr. Vs. Allahabad Bank & Ors., reported in (1996) 4 SCC 504 , the Supreme Court held as under: 17. The above discussion of case law makes it clear that if the order of compulsory retirement casts a stigma on the Government servant in the sense that it contains a statement casting aspersion on his conduct or character, then the court will treat that order as an order of punishment, attracting provisions of Article 311(2) of the Constitution. The reason is that as a charge or imputation is made the condition for passing the order the court would infer therefrom that the real intention of the Government was to punish the Government servant on the basis of that charge or imputation and not to exercise the power of compulsory retirement. But mere reference to the rule, even if it mentions grounds for compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. But mere reference to the rule, even if it mentions grounds for compulsory retirement, cannot be regarded as sufficient for treating the order of compulsory retirement as an order of punishment. In such a case, the order can be said to have been passed in terms of the rule and, therefore, a different intention cannot be inferred. So also, if the statement in the order refers only to the assessment of his work and does not at the same time cast an aspersion on the conduct or character of the Government servant, then it will not be proper to hold that the order of compulsory retirement is in reality an order of punishment. 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. 14. The question came up for consideration before a Division Bench of this Court in State of Gujarat v. Umedbhai M. Patel (2001) 3 SCC 314 , wherein Balakrishnan, J., (as the learned Chief Justice then was), summarized the law, 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. (vii) Compulsory retirement shall not be imposed as a punitive measure. (Emphasis added) 21. (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. (vii) Compulsory retirement shall not be imposed as a punitive measure. (Emphasis added) 21. What follows from the above discussion is that the retirement of the respondent by order, dated 31.01.2009, was stigmatic and penal in nature inasmuch as the said order was made, in effect, as a substitute for punishment, which could not have been done without resorting to appropriate course of law. Since the order, dated 31.01.2009, was not made as contemplated by FR 56(J), the learned Tribunal was wholly within the ambits of its powers in interfering with not only the order, dated 31.01.2009, whereby the respondent was retired from service, but also the order, dated 19.10.2010, whereby the respondent's appeal/representation was rejected. 22. Because of what have been discussed and pointed out above, we find no merit in this writ petition. The writ petition, therefore, fails and the same shall accordingly stand dismissed. No order as to costs. Petition dismissed