The Supreme Court opined that there are two elements present in Rule 56(j) of the Fundamental Rules (hereinafter referred to as “FR 56(j)”). One is the absolute right of the Government to retire an employee and the second is a requirement of meeting the condition of public interest. A prior notice of a minimum of 3 months is also required to be sent to the employee and the said provision can only be invoked if the employee is 55 years of age.
The Bench noted that in order of compulsory retirement what must be seen is whether the order was based on valid material and was in the public interest.
In the present case, nothing was placed on record to prove that despite having an impeccable record in service, suddenly what was the reason for which the Appellant was being made to compulsorily retire. Hence, the order was set aside.
Brief Facts:
The Appellant was a Permanent Commissioner Officer in the Indian Army. He was released from the service due to his demobilization. In 1989, the Appellant qualified for the Civil Services Examination and was appointed as an Officer and allocated to the 1990 Batch in the Indian Revenue Service. In 2012, the Appellant was promoted to the post of Commissioner in the Department of Income Tax. In 2016, the Appellant was empanelled by the ACC for appointment as Joint Secretary to the Government of India. Thereafter, a series of litigation between the parties ensued.
Firstly, the Appellant faced an adverse Intelligence Bureau report because of which he approached the Tribunal. The Tribunal directed the Respondents to resubmit the said report to the selection committee for a final view of the appointment. Against this direction, the Respondents preferred a writ petition which was dismissed and a special leave to appeal which was also dismissed.
In 2017, a vigilance inspection was carried out in the Appellant’s office, based on which a show cause notice was issued to the Appellant. The Appellant approached the Tribunal, and an interim order was passed stating that the withholding of the vigilance clearance would not affect the appointment of the Appellant for the said post. Against this, a special leave petition was filed by the Respondents which was dismissed.
The Appellant’s name was placed in the Suspect List because of which the Appellant again approached the Tribunal, and the Tribunal quashed the inclusion of the Appellant’s name in the “Agreed list” and the decision of the Respondents to deny vigilance clearance to the Appellant. The Respondents were directed to forward the name of the Appellant to the appropriate authority for appointment to the post of member, ITAT, but the Respondents did not comply with this. A writ petition was filed which stayed the order of the Tribunal.
Thereafter, the Respondents initiated disciplinary proceedings against the Appellant. The decision of promoting the Appellant to the post of Principal Commissioner was put in a sealed cover due to the pending disciplinary proceedings. The Respondents then proceeded to compulsorily retire the Appellant in 2019 which 3 months short of the date of the Appellant’s superannuation in 2020.
The order of compulsory retirement was challenged by the Appellant; however, the said challenge was dismissed.
Hence, the present appeal.
Contentions of the Appellant:
It was argued that the Additional Director General (Vigilance) had a bias against the Appellant and still participated in the meetings of the Review Committee.
Further, the order of pre-mature retirement was punitive in nature and the Selection could not be completed because of the obstructions created by Respondents such as withholding vigilance clearance without any cogent reason.
Moreover, it was contended that the Annual Performance reports of the Appellant has not been considered by the High Court where the integrity of the Appellant was assessed as “Beyond doubt”.
Contentions of the Union of India:
It was argued that the scope of enquiry under FR 56(j) is limited. Further, compulsory retirement does not amount to dismissal or removal and hence, no stigma can be attached to this.
It was contended that if an order of compulsory retirement is passed bona fide and without any extraneous motive, then there leaves no justification for interference with the same.
Observations of the Court:
Examining FR 56(j), the Apex Court opined that there are 2 elements present. One is the absolute right of the Government to retire an employee and the second is a requirement of meeting the condition of public interest. A prior notice of a minimum of 3 months is also required to be sent to the employee and the said provision can only be invoked if the employee is 55 years of age.
It was ruled that the scope of judicial review in matters about compulsory retirement is limited. Observing judicial precedents on the same, the Bench noted that in order of compulsory retirement what must be seen is whether the order was based on valid material and was in the public interest.
In the present case, it was noted that regarding the work performance of the Appellant, his integrity and efficiency remained unimpeachable and therefore, this cannot be a factor for compulsory retirement.
Concerning the contention of the Respondent that there were several complaints filed against the Appellant, it was noted that one of the complaints was a matrimonial discord. In that case, a mutual divorce was obtained and therefore, allegations of bigamy etc. lost significance. Further, the Respondents were aware of the case proceedings and despite this, the service record of the Appellant was unblemished. Therefore, it was ruled that nothing proves a decline in the work conduct of the Appellant.
It was observed that the adverse report against the Appellant also arose from the matrimonial dispute, which was well within the knowledge of the Respondents. Moreover, the Tribunal had several times issued directions to the Respondents to not withhold the vigilance clearance, which was not complied with.
Further, the Top Court remarked that instead of completing the disciplinary proceedings that were initiated, the Respondents issued an order of compulsory retirement. The charges levelled against the Appellant were about his matrimonial discord, for which it has already been noted that a settlement was arrived at between the Appellant and his wife, and the allegations could not even be proved by the wife.
Concerning the contention that there was bias on part of the Chairman, it was held that the presence of bias or mala fide in the system of governance strikes right at the foundation of the values of a regulated societal order. But since the Chairman was not arrayed as a party, the Bench refused to investigate the said contention.
The Supreme Court found force in the contentions of the Appellant as it was noticed that the Respondents only arrived at the order of compulsory retirement when the Appellant was to superannuate in 2020. Nothing was placed on record to prove that despite having an impeccable record in service, suddenly what was the reason for which the Appellant was being made to compulsory retire.
The decision of the Court:
Based on the reasons and findings, the Supreme Court set aside the order of compulsory retirement and accordingly, allowed the appeal.
Case Title: Captain Pramod Kumar Bajaj v. Union of India& Another
Coram: Hon’ble Justice Hima Kohli, Hon’ble Justice A.S. Bopanna
Case No: Civil Appeal No. 6161 of 2022
Citation: 2023 Latest Caselaw 178 SC
Advocates for Respondents: Advs. Mr. Sanjay Jain, Mr. Zoheb Hussain, Mr. Padmesh Mishra, Mr. Apoorv Kurup, Mr. Sunita Sharma, Mr. Rajat Nair, Ms. Tanya Aggarwal, Mr. Shivam Shukla, Mr. Raj Bahadur Yadav
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