High Court · 2012

We have heard Mr. M Bhagawati, learned counsel for the petitioner, and Mr. R Mazumdar, learned counsel, appearing on behalf of the respondent.

2. By the order, dated 25-05-2012, passed, in Original Application (in shor t, ’OA’) No. 48/2011, by the learned Central Administrative Tribunal, Guwahati B ench, 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 t heir power under FR 56(J), compulsorily retired the respondent herein from servi ce. 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 re spondent herein, which the respondent herein had made as against the order, dat ed 31-01-2009, aforementioned, whereby the respondent herein, as mentioned herei nbefore, stood retired. By the order, dated 25-05-2012, aforementioned, the lea rned Tribunal has further directed that the respondent herein be reinstated in s ervice 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 a pplication made under Article 226 of the Constitution of India. 3. 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 hereinbe low the order, dated 31-01-2009: (cid:28)Adm. review Committee of Northern Sector, CRPF, New Delhi held on 30.09.2008 ha s 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 P harmacist S.K. Singh prematurely w.e.f. 01.02.2009 (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 allou nces for a period of 03 months in lieu of notice period calculated at the same r ate 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) (cid:29) (Emphasis is added)

4. Aggrieved by the order, dated 31-01-2009, the respondent herein preferre d an appeal. As the appeal remained pending with the present petitioner and no d ecision, on the same, was rendered, the appellant (i.e., respondent herein) file d OA No. 14 of 2010, which was disposed of, on 17-05-2010, by the learned Tribun al directing the petitioner herein to dispose of the appellant’s (i.e., responde nt herein) said appeal/representation strictly in accordance with the Rules and instructions, on the said subject, by making a speaking order. 5. 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 th e applicant-respondent’s said appeal/representation by holding that the same was devoid of merit and that the action, taken by the Department, compulsorily reti ring the applicant/respondent from service, was in order. The order, dated 19-10 -2010, rejecting the appeal/representation, read as follows: (cid:28)O R D E R No. 761590034 Pharmacist S.K. Singh of 9th Bn CRPF filed OA No. 14/2010 at Hon’b le Central Administrative Tribunal, Guwahati Bench challenging the finding of re view 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 afo resaid appeal/representation strictly in accordance with rules and instruction o f the said subject by passing a speaking order within a period of two months fro m the date of receipt of this order. On disposal of aforesaid appeal/representat ion, the respondents should regulate his retirement dues, if any as per rules an d law. As per instructions contained in FR 56(J), Rule 48 of the CCS Pension Ru 3. les 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 pe rsonnel 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. 7659003 4 Pharmacist S.K.Singh of 9th Bn CRPF was a habitual offender, as he committed s ubsequent 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 a ttachment 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 wilful absen ce 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 awar ded 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 pun ishment of stoppage of one increment for one year without cumulative effect on a pplicant representation. Further as a result of review of the case the IGP Bhir 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 cumulat ive 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 bef ore Hon’ble High Court of Patna to justify the offence committed by the applican t 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 judg ment dated 23/4/07. (b) During his tenure in 9th Bn deployed in Assam he was deputed to coys from ti me to time to provide medical facilities/care/assistance to coys personnel by th e Commandant vide order No. M.III.1/07-08-CB-9 dated 7/6/08, 18/7/08, as the uni t and its coys were deployed in Malaria prone areas. To shirk the responsibiliti es 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 h is name in referral register of Unit MI room for treatment of Arthritis and diab etes without prior intimation or knowledge of the Competent Authority. Besides, he under his own signature referred himself to CH CRPF Guwahati for further tre atment as he was not authorized to sign on official letter. Without intimation h e left camp on 10/6/08 so a complaint was lodge in PS Mangaldai, NOK was informe d keeping in view prevalent situation in the state. Later on information was rec eived from Ch CRPF Guwahati that he reported there for treatment on 10/6/08. Aft er completion of treatment he reported back at Bn on 8/7/08. His period of absen ce/hospitalization was regularized by the competent authority according to rules and instructions. The Administrative Review Committee after examining service record as we 4. ll as Annual Confidential Reports and other records related to service of above Pharmacist found him unfit for retention in service in disciplined force Governm ent service. On the basis of recommendation of Administrative Review Committee N o. 761590034 Pharmacist S.K.Singh of 9th Bn CRPF was tetired prematurely from se rvice 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 i n lieu of notice period. 5. Aggrieved with above orders he preferred representation dated 14/2/09 ag ainst his premature retirement addressed to IGP, CRPF Northern Sector, New Delhi . Accordingly, his representation forwarded to representation committee headed b y ADG (Trg.) Dte. General CRPF for deciding the premature retirement. 6. Representation Committee considered his representation dated 14/2/2009 a nd after going through the record, ACR file etc and proceeding of Sector Adminis trative 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 o verstaying the sanctioned leave and found poor and unsatisfactory record of serv ice. He was given ample opportunity several times to improve upon his performanc e, but he did not bother to do so and remained as it is. Further, he failed to b ring any new facts to consider his representation otherwise. Keeping in view of above facts and taking into account of his indiscipline acts, representation sub mitted 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 r etirement from service is found in order. Sd/- ADDL. DIRECTOR GENERAL (TRG). (cid:29) (Emphasis supplied)

6. 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 tak ing recourse to FR 56(J), and also the order, dated 19-10-2010, whereby the resp ondent’s appeal/representation made against the order, dated 31-01-2009, was rej ected. Since the learned Tribunal has allowed the OA and set aside the order, da ted 31-01-2009, as well as the order, dated 19-10-2010, aforementioned, the resp ondent, in the OA No. 48 of 2011, has, now, approached this Court, as indicated above, with the present writ application. 7. While considering the present writ petition, it needs to be noted that t he appropriate authority has, under FR 56(J), absolute right to retire any Gover nment 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 ap propriate authority, it is in the public interest so to do. A bare reading of the order, dated 31-01-2009, whereby the petitioner wa 8. s retired from service, while he was serving as Pharmacist, shows that his retir ement, according to the order, dated 31-01-2009, itself, was on the ground that he was ’found unfit for further retention in service’. 9. Though the appropriate authority, as already pointed above, has the abso lute right to retire a Government servant by invoking its right under FR 56(J), the order, so made, cannot be stigmatic or penal. 10. Considering the fact that by the order, dated 31-01-2009, aforementioned , whereby the respondent herein had been retired, mentions that he was ’found un fit for further retention in service’, one cannot help, but hold that this obser vation, in the order, is highly stigmatic and the respondent’s retirement, on su ch a ground, would leave not only stigma on the respondent, but would also amoun t to his removal from service, which, in turn, would be penal in nature. An ord er, 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 sustaine d, for, an order, which is either stigmatic or penal in nature, cannot be made w ithout resorting to the procedure, which the Rules, relating to disciplinary pro ceedings, may, in a given case, prescribe. 11. Coupled with the above, the petitioner herein was directed by the learne d Tribunal by its order, dated 17-05-2010, in OA No. 14 of 2010, to dispose of t he appeal strictly in accordance with rules and instructions, on the subject, by making a speaking order. Pursuant thereto, the petitioner herein, as already po inted out above, passed the order, dated 19-10-2010, rejecting the appeal/repres entation of the respondent herein. This order shows that the authority, who pass ed the order, dated 19-10-2010, stated in the order as to why the Review Committ ee, on examination of the record of service of the petitioner, had retired him b y 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 commit ted acts of indiscipline during the span of service. 12. 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 al so not ignore the fact that at Para 6 of the order, dated 19-10-2010, aforementi oned, the authority concerned also observed that the respondent herein had not o nly been found a habitual offender, but he had also been found (cid:28) & &.habitual of d eserting from the camp and overstaying the sanctioned leave and found poor and u nsatisfactory 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. (cid:29)

13. Even a cursory reading of the order, dated 19-10-2010, clearly demonstra tes 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 proceedi ngs. 14. The right, which is given to the appropriate authority by FR 56(J) is ab solute 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 h is post for an act of misconduct without taking recourse to appropriate discipli nary proceeding. The reason is that misconduct is required to be proved. A Gove rnment servant cannot be condemned without being heard and without accusation of misconduct having been proved.

15. 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 autho rity’s right under FR 56(J). 16. We find that the learned Tribunal has taken note of the relevant facts a nd observed, at para 13, of its presently impugned order, dated 25-05-2012, pass ed in OA No. 48 of 2011, thus, (cid:28)After careful scrutiny of the papers as well as submissions of the learned counsel for the parties, we are of the view that alth ough compulsory retirement is not a punishment, but in the instant case the ex p arte departmental enquiry was conducted against the applicant for unauthorized a bsence 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 pu nishment order of stoppage of one increment for one year without cumulative effe ct was inflicted and the same was thereafter modified and punishment of withhold ing of one increment for a period of three years without cumulative effect was i mposed 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 per iod of unauthorized absence w.e.f. 10-06-2008 was regularized on 08-07-2008. How ever, in compliance with the order of the Tribunal the respondents passed the or der dated 19-10-2010 confirming the compulsory retirement after taking into cons ideration 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 r etirement, 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, t his amounts to second punishment for the same cause. In our view the impugned or ders dated 31-01-2009 and 19-10-2010 are unsustainable and the same are liable t o be set aside and quashed. Accordingly, the aforesaid impugned orders are set a side and quashed. The respondents are directed to reinstate the applicant in ser vice and he shall be entitled to all consequential benefits. (cid:29) (Empha sis is added) 17. 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 draw n, 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 ord er 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 app ropriate disciplinary proceeding. 18. Moreover, we have already held above that the order, dated 19-10-2010, i s 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 approp riate course of law. 19. The reference made by Mr. R Mazumdar, learned counsel, to the case of St ate 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 outl ived his utility’. Having noticed this, the Constitution Bench observed, in Mad an Mohan Nagar (supra), that such an order casts stigma and amounts to removal f rom service inasmuch as the expression used, in the order of retirement, that th e respondent had ’outlived his utility’, meant that the employee was incapacitat ed from holding the post, which he was holding, and such an act order casts stig ma on a person that there was something wrong in the person or he was incapacita ted from working. 20. In fact, in Jagdish Mitter v. Union of India, reported in ________, 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 stig ma 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 servic e of an employee, it can pass a simple order of discharge without casting any as persion 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 Mit ter (supra), while dealing with this aspect of the case, Gajenderagadkar, J, as His Lordship then was, speaking for the Supreme Court, said: (cid:28) & & &The test, in s uch cases, must be: does the order cast aspersion on, or attach stigma to, the o fficer, 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 terminatio n of service must be held, in substance, to amount to dismissal (cid:29). 21. Even in the case of Allahabad Bank Officers’ Association and Another v. Allahabad Bank and Others, reported in (1996) 4 SCC 504, the Supreme Court held as under: (cid:28)17. The above discussion of case law makes it clear that if the order of compul sory retirement casts a stigma on the Government servant in the sense that it co ntains a statement casting aspersion on his conduct or character, then the court will treat that order as an order of punishment, attracting provisions of Artic le 311(2) of the Constitution. The reason is that as a charge or imputation is m ade 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 ba sis of that charge or imputation and not to exercise the power of compulsory ret irement. But mere reference to the rule, even if it mentions grounds for compuls ory retirement, cannot be regarded as sufficient for treating the order of compu lsory retirement as an order of punishment. In such a case, the order can be sai d 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 a ssessment of his work and does not at the same time cast an aspersion on the con duct 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. Wh ether the statement in the order is stigmatic or not will have to be judged by a dopting 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 C ourt in State of Gujarat v. Umedbhai M. Patel (2001) 3 SCC 314, wherein Balakris hnan, 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 genral 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 pu nishment 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 enti re 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 int o consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to av oid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the c onfidential record, that is a fact in favour of the officer. (vii) Compulsory retirement shall not be imposed as a punitive measure. (cid:29) (Emphasis added) What follows from the above discussion is that the retirement of the res 22. pondent by order, dated 31-01-2009, was stigmatic and penal in nature inasmuch a s the said order was made, in effect, as a substitute for punishment, which coul d not have been done without resorting to appropriate course of law. Since the o rder, dated 31-01-2009, was not made as contemplated by FR 56(J), the learned Tr ibunal was wholly within the ambits of its powers in interfering with not only t he 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/representatio n was rejected. 23. Because of what have been discussed and pointed out above, we find no me rit in this writ petition. The writ petition, therefore, fails and the same shal l accordingly stand dismissed. No order as to costs. 24.