Central Board Of Direct Taxes v. Om Prakash Meena

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 12633/2023 1. Union Of India, Through Its Secretary, Ministry OfFinance, Department Of Revenue, Central Secretariat,North Block, New Delhi-110001Finance, Department Of Revenue, Central Secretariat,North Block, New Delhi-110001 2. Central Board Of Direct Taxes, Through Its Chairman,North Block, New Delhi-110001North Block, New Delhi-110001 ----Petitioners Versus Om Prakash Meena S/o Late Shri Nanag Ram, Aged About 59Years, R/o 2/233, Sector-2, New Vidyadhar Nagar, Jaipur-302027 (Rajasthan), Earlier Working As Principal CommissionerOf Income Tax (Group A Post). ----Respondent For Petitioner(s) For Respondent(s) : Mr. Hanu Bhasker : Mr. Amit Mathur HON'BLE THE CHIEF JUSTICE AUGUSTINE GEORGE MASIH HON'BLE MR. JUSTICE SAMEER JAIN Order 22/08/2023 1.Present writ petition is directed against the impugned orderdated 16.02.2023 passed by the Central Administrative Tribunal,Jaipur Bench, Jaipur (for short “CAT”) in Original Application (forshort “OA”) No. 103/2020. The CAT had allowed the OA filed bythe respondent-applicant and had set aside the order ofcompulsory retirement dated 27.09.2019 passed by the petitionerunder Rule 56(j) of the Fundamental Rules (for short “FR 56(j)”). 2.Learned counsel for the petitioner submits that the order tocompulsory retire the respondent was passed in exercise ofpowers conferred under FR 56(j). It is contended that this power is absolute and does not amount to a punishment and the decisionwas based on the entire service record of the petitioner, and notjust the disciplinary proceedings initiated against the respondentin pursuance to the charge-sheet dated 06.04.2018, as observedby the CAT. It is submitted that the decision to retire a person,under FR 56(j), holding higher level of office is taken on therecommendation of a committee headed by Secretary of theDepartment and including the Chairman of Central Board of DirectTaxes. There is also a separate representation committeeconstituted which is headed by Secretary of different Departmentand this elaborate system has been created to ensure there is noarbitrariness in the decision making process. In this background,learned counsel for the petitioner contends that judicialintervention in FR 56(j) cases is warranted in only those caseswhere malice is alleged against the decision making committee orwhen the action is found to be totally perverse or arbitrary andsince no malafide was alleged against the committee, the CATought not to have interfered in the exercise of power under FR56(j). To buttress his submissions, learned counsel for thepetitioner has placed reliance on Apex Court judgments of Stateof Gujarat vs. Umedbhai M. Patel reported in (2001) 3 SCC314. 3.Per contra, learned counsel for the respondent-applicantsubmits that the CAT, being the last fact finding body, afterappreciation of the entire record and arguments came to theconclusion that the decision to prematurely retire the respondent-applicant was solely based on the disciplinary action initiated in pursuance of charge-sheet dated 06.04.2018, in which therespondent-applicant had subsequently been exonerated. Even theHon’ble Allahabad High Court’s decision of Captain PramodKumar vs. Union of India (Writ-A No. 24856/2020; decidedon 31.05.2022), upon which strong reliance was placed bypetitioners before the CAT, has been reversed by the Hon’bleSupreme Court in Captain Pramod Kumar Bajaj vs. Union ofIndia (UOI) and Ors. (Neutral Citation: 2023/INSC/204)reported in (2023) 2 SCR 30, wherein the Hon’ble SupremeCourt, while considering the FR 56(j), specifically held thatcompulsory retirement order can be set aside if it’s found to bepunitive in nature and was passed to circumvent disciplinaryproceedings. pursuance of charge-sheet dated 06.04.2018, in which therespondent-applicant had subsequently been exonerated. Even theHon’ble Allahabad High Court’s decision of Captain PramodKumar vs. Union of India (Writ-A No. 24856/2020; decidedon 31.05.2022), upon which strong reliance was placed bypetitioners before the CAT, has been reversed by the Hon’bleSupreme Court in Captain Pramod Kumar Bajaj vs. Union ofIndia (UOI) and Ors. (Neutral Citation: 2023/INSC/204)reported in (2023) 2 SCR 30, wherein the Hon’ble SupremeCourt, while considering the FR 56(j), specifically held thatcompulsory retirement order can be set aside if it’s found to bepunitive in nature and was passed to circumvent disciplinaryproceedings. 4.Heard the arguments advanced by both the sides, scannedthe record of the writ petition and considered the judgments cited at Bar. 5.The issue pertains to order of premature/compulsoryretirement, passed in exercise of powers under FR 56(j), which is reproduced as under: ““FR 56(j) : - The Appropriate Authority shall, if it is of theopinion that it is in the public interest so to do, have theabsolute right to retire any Government servant by givinghim notice of not less than three months in writing or threemonths' pay and allowances in lieu of such notice: (i) If he is, in Group ‘A’ or Group ‘B’ service or post in asubstantive, quasi-permanent or temporary capacity andhad entered Government service before attaining the age of35 years, after he has attained the age of 50 years;(ii) In any other case after he has attained the age of 55years.” 6.On consideration of the rival arguments, the following points emerge: 6.1) That the respondent-applicant was an IRS Officer havingservice of over 25 years; 6.2) That the respondent-applicant had no adverse ACR’s in hisentire service record and the only aberration was the charge sheetdated 06.04.2018 for the alleged misconduct in giving favourabletreatment while assessing tax liability of an advocate who hadearlier appeared for the respondent-applicant in an old caserelating to the respondent-applicant’s promotion. However, thesaid charges were never established and at the time of the orderof compulsory retirement, the disciplinary proceedings were stillpending. Furthermore, the respondent-applicant has also beenexonerated in the disciplinary proceedings thereafter; 6.3) That the respondent-applicant was due to retire in about tenmonths at the time of passing of the order for prematureretirement. 7.In similar facts and circumstances, the Hon’ble Apex Court,in the case of Captain Pramod Kumar Bajaj vs UOI (supra),had set aside the order of compulsory retirement after noting thatthe order of compulsory retirement was punitive in nature and wasonly passed to circumvent the disciplinary proceedings. Therelevant portion of the aforesaid judgment is extracted as under: “39. Dehors the aforesaid allegations of institutional biasand malice, having perused the material placed on record,we find merit in the other grounds taken by the Appellant.It is noticed that though FR 56(j) contemplates that theRespondents have an absolute right to retire a governmentservant in public interest and such an order could have beenpassed against the Appellant any time after he had attainedand malice, having perused the material placed on record,we find merit in the other grounds taken by the Appellant.It is noticed that though FR 56(j) contemplates that theRespondents have an absolute right to retire a governmentservant in public interest and such an order could have beenpassed against the Appellant any time after he had attained “39. Dehors the aforesaid allegations of institutional biasand malice, having perused the material placed on record,we find merit in the other grounds taken by the Appellant.It is noticed that though FR 56(j) contemplates that theRespondents have an absolute right to retire a governmentservant in public interest and such an order could have beenpassed against the Appellant any time after he had attainedand malice, having perused the material placed on record,we find merit in the other grounds taken by the Appellant.It is noticed that though FR 56(j) contemplates that theRespondents have an absolute right to retire a governmentservant in public interest and such an order could have beenpassed against the Appellant any time after he had attained the age of fifty years, the Respondents did not take anysuch decision till the very fag end of his career. Theimpugned order of compulsory retirement was passedin this case on 27th September, 2019 whereas theAppellant was to superannuate in ordinary course inJanuary, 2020. There appears an apparentcontradiction in the approach of the Respondents whohad till as late as in July, 2019 continued to grade theAppellant as 'Outstanding' and had assessed hisintegrity as 'Beyond doubt'. But in less than threemonths reckoned therefrom, the Respondents hadturned turtle to arrive at the conclusion that hedeserved to be compulsorily retired. If the Appellantwas worthy of being continued in service for littleshort of a decade after he had attained the age of 50years and of being granted an overall grade of 9 onthe scale of 1 - 10 on 31st July, 2019 it has not beenshown as to what had transpired thereafter thatmade the Respondents resort to FR 56(j) and invokethe public interest doctrine to compulsorily retire himwith just three months of service left for hisretirement, in routine. In such a case, this Court isinclined to pierce the smoke screen and on doing so,we are of the firm view that the order of compulsoryretirement in the given facts and circumstances of thecase cannot be sustained. The said order is punitive innature and was passed to short-circuit thedisciplinary proceedings pending against theAppellant and ensure his immediate removal. Theimpugned order passed by the Respondents does notpass muster as it fails to satisfy the underlying test ofserving the interest of the public. 40. In view of the above discussion, it is deemedappropriate to reverse the impugned judgment dated 31stMay, 2022 and quash and set aside the order dated 27thSeptember, 2019 passed by the Respondents, compulsorilyretiring the Appellant. Resultantly, the adverseconsequences if any, flowing from the said order ofcompulsory retirement imposed on the Appellant, are alsoset aside. The appeal is allowed and disposed of on theaforesaid terms while leaving the parties to bear their owncosts.” 8.In our considered view, the case in hand is squarely coveredby dictum of the above quoted Apex Court judgment. Therefore,no interference is called for in the present matter. 9.Consequently, the writ petition is dismissed. Pending application(s), if any, shall stand disposed of. (SAMEER JAIN),J (AUGUSTINE GEORGE MASIH),CJ Pooja /8