Union of India and Others vs Maganbhai P Parmar

Honourable Mr. Justice G.B. Shah

We have heard Mr Mrugan Purohit, learned counsel for the petitioners and Mr. K. R. Dave, learned counsel for the respondent. Special Civil Application No.9397 of 2007 has been filed by petitioners challenging the order dated 22.12.2006 passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in Original Application No.655 of 2006 by which the application of the respondent was allowed and directed reinstatement of the respondent with all consequential benefits. Special Civil Application No.9422 of 2007 has been filed by the petitioners challenging the order dated 27.11.2006 passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in Original Application No.224 of 2006 by which the application of the respondent was allowed and the period from 20.4.2004 to 8.6.2005 was directed to be treated as period spent on duty.

The facts of the case in brief are as under:

The respondent was appointed as Postman with the Department of Post on 6.2.1974 and was promoted as Postal Assistant w.e.f 12.7.1980. The Confidential Reports of the respondent were not upto the mark and, therefore, on several occasions, the respondent were issued memos as regards his performance as Postal Assistant. In the year 1995-1996 also the confidential report of the respondent was not upto the mark and there was adverse remarks to the effect that he was not fully devoted to his duties, having doubtful integrity and punishment of stoppage of one increment for 12 months was imposed. During the year 1996-1997, the performance of the respondent was not found satisfactory. In the year 1997- 1998, the petitioners found that several adverse remarks were in the confidential reports of the respondent such as - not fully devoted to his duties, performance was not satisfactory, public complaints were received and he was involved in theft of 2 NSCs each o f Rs.10,000/- and got issued in his own name and also obtained loan from Bank pledging the said NSCs. For this incident of theft, departmental inquiry was initiated against the respondent and a police complaint was lodged with Wadi police station and after investigation, charge sheet was filed in the court of learned Judicial Magistrate First Class, Vadodara where the complaint was registered as Criminal Case No.684 of 1997 which is pending before the Court. During the year 2002-2003, penalty was imposed on the respondent by reducing his pay by four stages in 30 months for issuances of bogus NSCs in his own name and got loan from the Bank by pledging the said NSCs. The Review Committee of the petitioner department carried out review of the case of the respondent on completion of 30 years of service as provided by the Rules and the said committee came to the conclusion that the respondent is not fit to be retained in service in public interest and accordingly he was served with notice dated 19.1.2004 by the petitioner No.3 under FR 56(I)/48(1)(b) of CCS (Pension) Rules that he will be compulsorily retired from service with effect from 20.4.2004 in public interest. The respondent had given representations which were not considered by the Review Committee. The respondent challenged the said notice by filing O.A. No. 189/04 before the Central Administrative Tribunal, Ahmedabad Bench (for short, "the Tribunal"). The Tribunal, by its order dated 15.2.2005 allowed the application and set aside the notice dated 19.1.2004 and while disposing of the said Original Application No.189 of 2004, in para 30, the Tribunal observed as under:

For the aforesaid reasons, we quash and set aside order dated 19.1.2004 of the Appointing Authority compulsorily retiring the applicant from forenoon of 20th April 2004 and direct the respondents to reinstate the applicant in service. It is, however, open to the respondents to review the case of the applicant for compulsory retirement by placing the same before the Review Committee and pass appropriate order after taking into consideration the whole service records of the applicant and instructions in this regard of the Government of India. With these observations and directions, Original Application stands disposed of. No order as to costs.

In compliance of the above directions of the Tribunal, the respondent was reinstated in service by the petitioners. The Review Committee consisted of highest officers of the Department again reviewed the case of the respondent taking into consideration all the relevant service records and found that the respondent is not fit to be retained in service. Pursuant to the aforesaid decision, three months'' notice came to be issued to the respondent prematurely retiring him from service w.e.f. 23.10.2005 (forenoon). On 29.7.2005, the respondent made a representation to the higher authority at New Delhi against the above referred notice which was rejected vide order dated 25.11.2005. On 23.10.2005, the respondent was deemed to have been prematurely retired from service as the respondent had refused to sign the formal charge report. Aggrieved by the notice dated 22.7.2005, the respondent filed Original Application No.655 of 2005 before the Tribunal. The Tribunal had allowed the application of the respondent and quashed the notice dated 22.7.2005 directing reinstatement of the respondent with all consequential benefits. It is this order which is under challenge by the petitioners before this court.

Learned counsel for the petitioners has submitted that the observations made by the Tribunal in Original Application No.189 of 2004 were not required to be perused by the Tribunal again since the Tribunal itself has directed the Review Committee to decide the case of the respondent afresh after perusing the service record of the respondent and since the Review Committee has taken a decision afresh after perusing the entire service record of the respondent, the observations made in para 2 of the order dated 22.12.2006 which is reproduction of earlier paragraphs of decisions in O.A. No.189 of 2004, are not at all relevant in the present case. Learned counsel has also submitted that the Tribunal has reproduced some portion of the minutes of the Review Committee meeting held on 23.6.2005 in para 3 of its order (Annexure ''A'') and observed that the agenda note or the summarized statement placed before the Committee is neither available in this file nor is produced with the reply. These observations show that the Tribunal wanted details of intra-departmental correspondences and confidential reports of the respondent which are not permitted in a court case. It is further submitted that the Tribunal is not sitting in appeal over the decision of the Review Committee consisting of highest officers of the petitioner department. The learned counsel, has then submitted that if the service records of the respondent is perused, it is clear that he was involved in the offences which is of serious nature and in view of the decision taken by the Review Committee, the respondent is required to be retired prematurely with immediate effect in the public interest and accordingly the order issued by the petitioners department is just and proper. He has further submitted that the Tribunal has erred in holding that the petitioner has imposed major penalty of pay reduction of 4 stages for a period of 30 months in a case of theft of NSCs and getting loan on bogus NSCs by the respondent. As such the Review Committee has perused the entire service records of the respondent and the said fact is reflected in the decision dated 23.6.2005 and, therefore, the Tribunal ought not to have observed that the decision of the Review Committee was without any basis and nothing was produced before it. If the authority imposed penalty on the respondent for committing wrong, then the decision taken by the Review Committee without prejudice to the submissions made by either of the parties, it would not be fair to say that the Review Committee has taken the said decision without perusing the material. He has vehemently submitted that in the year 2004 the first Review Committee which took the decision consisted of Post Master General, Vadodara and Director of Postal services, Vadodara whereas the second Review Committee consisted of Chief Post Master General, Gujarat Circle and the Director of Postal Services, Ahmedabad. So the second Review Committee was consisting of highest officers of the Circle and, therefore, the decision taken by the said Committee is not prejudiced by the decision taken by earlier Review Committee.

Learned counsel for the respondent has submitted that the petitioner relies on the fact that there is a criminal case pending against the present respondent but the departmental proceedings and criminal trial are distinct. The department may consider conviction in a criminal case for departmental action but pendency of a criminal case does not weigh the department for its conclusion. He has further submitted that the Review Committee had considered confidential reports of the respondent of last five years only. The learned Tribunal had called for these Confidential Reports and nothing adverse was found in it. The respondent reiterates that no adverse remark was ever communicated to him. In case the Confidential Reports are adverse, it is obligatory on the part of the department to communicate it to the concerned employee. Non-communication in this case leaves no room that can establish that the respondent can be penalised on the basis of Confidential Reports. He has, lastly submitted that the respondent has been penalised by imposing reduction of pay for four stages for 30 months. In the case of theft of NSCs punishment of compulsory retirement had been imposed which shows that the respondent had been penalised twice for the same charge.

We have thoroughly gone through the relevant documents/papers which are forthcoming on the record of this appeal and in light of the same we have considered the above referred rival submissions made by the learned counsel for the parties. The minutes of the Review Committee held on 23.6.2005 for review of premature retirement of the present respondent Shri M P Parmar is at Annexure - C at pages Nos.177 to 179. The factual aspects and the facts narrated in the said minutes referred above are not much in controversy. Minutes of the Review Committee referred above is extracted below:

In pursuance of Director General, New Delhi Comm. No.135/133/77/SPB.II dated 15.3.1978, a review of government servants for further retention in service after attaining age of 55 years or completing 30 years of service during the period from 1.1.2004 to 31.12.2004 was cancled out on 13.1.2004 by review committee of Vadodara region at Vadodara headed by PMG Vadodara and DPS Vadodara.

Further retention of Shri M.P. Parmar, PA Vadodara HO in government service after completion of 30 years service was considered by the review committee held on 13.1.2004. The said official was not found fit for retention in government services in the Department keeping in view his past service records and therefore, it was recommended by the committee to retire him prematurely in the public interest. SSPOs, Vadodara East Division has served notice-cum-order under memo No.B2/PR/Review dated 19.1.2004 for premature retirement with effect from 20.4.2004 F/N to Shri M.P. Parmar and accordingly he was retired from government service after completion of 30 years of service under rule 48(1)(b) of CCCs (Pension) Rules, 1972 as amended from time to time.

Aggrieved by the recommendation of review committee and consequent upon his premature retirement, the said Shri M.P. Parmar had approached CAT Ahmedabad filing OA/189/2004/ The Hon''ble Bench of CAT Ahmedabad vide order and judgment in above OA/189/04 has quashed and set aside the order dated 19.1.2004 of SSPOs Vadodara East Division with directions to reinstate the applicant in service with liberty to the respondents to review the case of the applicant for premature retirement by placing the same before Review Committee.

Therefore, keeping in view the directions of Hon''ble Bench of CAT Ahmedabad in OA/189/2004, the Review Committee comprising of the following officers met on 23.6.2005 to reconsider the premature retirement of Shri M P Parmar.

Chairperson - M.S. Radhika Doraiswamy, CPMG

Member - Lt Col.D.K.S. Chauhan, DPS

Shri M P Parmar has been reinstated in service as Postal Assistant and has joined service at Fatepura, Vadodara 390 006 with effect from 9.6.2005 F./N under Vadodara East Division. The official has completed 30 years of service during the period from 1.1.2004 to 31.3.2004.

Whole service records of said Shri M P Parmar were placed before the committee for considering his retention in Government services in the Department. The Committee has thoroughly reviewed all the service records of Shri M P Parmar. The Committee has also reviewed the findings of last review committee held on 13.1.2004.

After careful consideration of entire service records, CR Dossiers and relevant disciplinary proceedings files, the committee has observed that the said Shri M P Parmar, PA Vadodara HO has generally earned average grading in his entire service records. He was found involved in a major criminal case and found to have been a person of low integrity. In view of this, the committee was of the considered views that, the said Shri M P Parmar was not fit person for further retention in service.

The review committee, therefore, recommends to retire the said Shri M P Parmar, PA Vadodara HO (Vadodara East Division) prematurely from Government Service with immediate effect in the public interest.

Perusal of the above minutes of the Review Committee consisting of Chairperson Ms. Radhika Doraiswamy, CPMG and Member Lt.Col. D.K.S. Chauhan, DPS shows that the said Review Committee had reviewed the whole service record of the respondent placed before them for considering the question of retention in government service in the department. So far as the C.R. Dossiers are concerned, the Review Committee has found that generally the respondent earned average grading in the entire service.

Learned counsel for the petitioner has drawn our attention to paras 2.2, 2.3 and 2.4 of the memo of the Appeal and submitted that if the C.R. Dossiers of the years 1995-1996, 1997-1998 and 2002-2003 are perused, it is clear that over and above other aspects mentioned in it the Review Committee had rightly found that the respondent had generally earned average grading in the entire service.

6.1. Learned counsel for the respondent, inviting our attention to the affidavit-in-reply dated 22.3.2010 filed in this Special Civil Application, has submitted that the concerned review committee had considered the confidential reports (CRs) of the respondent of last five years and as such the learned Tribunal had called for these CRs and nothing adverse was found in it. Learned counsel for the respondent reiterates that no adverse remarks were ever communicated to the respondent. It is the settled legal position that in case any adverse remarks are there in the CRs, then it is obligatory for the department to communicate the same within the time stipulated to the concerned employee. Learned counsel for the respondent then, has submitted that this non-communication leaves no room but it goes against the department as well as non-application of mind of the review committee. Against this, nothing cogent has been submitted by the learned counsel for the petitioner on the above issue whether the adverse remarks made in CRs of the respondent had already been communicated to the respondent or not. We have perused the sur-rejoinder dated Nil filed in OA No.655 of 2005 by the petitioner/original respondent. Last six lines of para 11 of the said sur-rejoinder reads as under:

As regards communication of average remarks to the applicant, it is mentioned here that only adverse remarks are to be communicated to the Government servant cannot regarding the remarks of average performance. (sic)

Thus, according to the above contentions as per the learned counsel for the petitioner, the remark "average" is not required to be communicated because the remark "average" in the CR is not said to be an adverse remark and only adverse remarks can be communicated so that one can improve oneself after receiving the said communication. From the above circumstances, it is clear that the review committee while observing the CRs of Mr M P Parmar, had found that the present respondent had earned generally average grade in his entire service record. The review committee as such considered the said ''average'' entry in regard to the respondent and the CR appeared to have been apparently taken into consideration and as per the case of the petitioner, the said average entry in the said CRs were even not required to be communicated as the said remark is not called as "adverse" entry. No circular or G.R. on the above aspects have been produced by the petitioner and nothing further has been forthcoming on the record relating to the said issue. We do not find any substance in the said submissions made by the learned counsel for the petitioner that the generally earned average grading/remarks are not required to be communicated to the concerned employee because the same is not called as adverse entry. The above aspect clearly shows that the review committee had minutely not perused the whole service record of the present respondent and as such the review committee had not taken care to see whether the said adverse remarks had been communicated to the respondent or not and in our view this important and vital issue goes against the petitioner. It is important to note that in the sur-rejoinder the petitioner has not stated that the adverse remarks were communicated to the respondent. Nothing is forthcoming on the record to the effect that if we presume that the adverse remarks were communicated then whether the respondent had made any effort to get it expunged or whether the respondent had remained silent. Under the circumstances there is no reason not to believe the respondent that no such adverse remarks in the CR were communicated to him within the stipulated time.

The Tribunal, in order dated 22.12.2006 passed in O.A. No.655 of 2005, has rightly observed that the Committee has not recorded the reasons in the service record of the respondent justifying their recommendations for premature retirement. It had also observed that the reply of the present petitioners indicated that the committee had considered the service record of last five years and since in the CRs several remarks were found about his unsatisfactory work and conduct and also that since the respondent had been punished for misconduct, the Committee had not found him fit to be continued in service. It had then observed that thus the committee had arrived at a conclusion without any material available to it or without considering such material but merely considered the service record of last five years. The Tribunal had further observed that thus the decision is vitiated on account of non-application of mind and it is an arbitrary decision on collateral ground. Now, in light of the above observation if we peruse the appeal memo more particularly paras 2.2, 2.3 and 2.4 it talks about the C.R. Dossiers of the years 1995-1996, 1997-1998 and 2002-2003 only. As referred above, as per the appellants the Review Committee had considered the entire service records and came to the conclusion that the respondent had generally earned average grading in his entire service records. Nothing is forthcoming on record as to the entire service records which the Review Committee considered pertained to which period/years. The subjective satisfactions of the Tribunal referred above have not been controverted by the petitioners in the petition. Thus, so far as the above issue is concerned, we find no illegality or infirmity in the findings of the Tribunal and we find ourselves in complete agreement with the same.

The next observation of the above referred review committee is that the respondent was found involved in a major criminal case and found to have been a person of low integrity. So far as involvement of the respondent in the criminal case is concerned, it is related to the alleged theft of 2 NSCs each of Rs.10,000/- got issued in his own name and also obtained loan from Bank pledging the said NSCs and for the said incident, departmental inquiry was initiated and after completion of the said departmental inquiry later on during the year 2002-2003, by order dated 28.8.2002, penalty was imposed on the respondent by reducing pay by 4 stages for 30 months. On the alleged incident of theft, it appears that the police complaint was lodged with Wadi police station and after investigation charge sheet was also filed in the court of learned JMFC, Vadodara where the complaint was registered as Criminal Case No.684 of 1997 which is pending before the court as per the say of the learned counsel for the petitioners.

8.1. As referred above, the second observation of the Review Committee is that the respondent was found involved in a major criminal case and found to have been a person of low integrity. It is the submission of the learned counsel for the respondent that for this very incident, departmental proceedings were carried out and by order dated 28.8.2002 penalty of reducing his pay by four stages in 30 months was imposed and the same incident is considered by the Review Committee while deciding the question related to compulsory retirement and this is nothing but double jeopardy which cannot be sustained as held by the Apex Court in Lt. Governor, Delhi and Others v. H C Narinder Singh (2004) 13 SCC 342 wherein the Apex Court held that second penalty based on the same cause of action would amount to double jeopardy.

Learned counsel for the respondent has vehemently argued that the review committee has given much weightage to the fact that there is a criminal case pending against the respondent but it is the fact that the departmental proceedings and criminal trial are different and the department may consider conviction in a departmental inquiry but pendency of the criminal case has nothing to do with the findings of the departmental inquiry as both are separate proceedings. He has further submitted that as discussed above, the respondent has been penalised by reducing pay by 4 stages for 30 months and hence while considering the issue relating to the premature retirement of the respondent, as the respondent had already been penalised, much weightage should not be given to the pendency of the criminal case and no person can be punished twice for the same charge.

9.1. On the above issue, learned counsel for the petitioners has drawn our attention to a decision of this High Court in Krupesh Ramakant Vora & Anr v. State of Gujarat & Anr. 2011 (1) GLR 420 and submitted that in para 24 the Court has considered the principles crystallized in para 11 of another decision in State of Gujarat Vs. Umedbhai M. Patel, Para 24 is reproduced hereunder:

The law relating to compulsory retirement as now crystallized into definite principles which could be broadly summarized thus :-

(i) Whenever the service of the 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 of dead wood but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer forthcoming;

(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such orders;

(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;

(viii) Compulsory retirement shall not be imposed as a punitive measure.

We have gone through the above ratio laid down by the Supreme Court and considered the view taken by the Division Bench of this court. We are in agreement with the principles laid down with regard to compulsory retirement. The learned counsel for the respondent has drawn our attention to the principle "compulsory retirement shall not be imposed as a punitive measure" and submitted that the Tribunal has come to the conclusion that the committee was greatly influenced by the penalty imposed in the earlier disciplinary proceedings and so considering the same, in our view, the above referred decision will be helpful to the respondent''s case. We have perused the order dated 22.12.2006 passed by the Tribunal in OA No.655 of 2005 wherein in para 3, the Tribunal has held as under:

...that the incidents mentioned in the charge sheet and the imposition of penalty was very much before the Disciplinary Authority-cum-Appointing Authority when the order of penalty dated 28.8.2002 was passed. However, they decided to impose lightest of major penalty of stoppage of increment with cumulative effect and no action has been taken to enhance the punishment imposed on the respondent. This lead us to believe that the decision to retire the respondent prematurely from service was not due to the poor or average performance but was greatly influenced by the imposition of penalty in the earlier disciplinary proceedings.

We are in complete agreement with the above findings of the Tribunal and we find that there is substance in the submissions made by the learned counsel for the respondent that no person can be punished twice for the same charge. Of course the outcome of the pending criminal case shall definitely be faced by the respondent. So far as branding the employee as "low integrity" is concerned, except the above issue nothing has been forthcoming on the record to show that barring the above referred incident, integrity of the present respondent is doubtful.

In the result, this Special Civil Application is dismissed. The order dated 22.12.2006 passed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad in O.A. No.655 of 2005 is confirmed. The directions given by the Tribunal in para 17 of its order dated 22.12.2006 passed in O.A. No. 655 of 2005 shall be complied with by the petitioners within a period of three months from the date of receipt of this order. There shall be no order as to costs.

11.1. So far as Special Civil Application No.9422 of 2007 filed by the present petitioners for quashing and setting aside the order dated 27.11.2006 passed in O.A. No.224 of 2006 by the Central Administrative Tribunal, Ahmedabad Bench is concerned, referring the earlier order dated 10.4.2007 it appears that the ad-interim relief in terms of para 7 [C] was granted by the Division Bench of this Court. As Special Civil Application No.9397 of 2007 has been dismissed, Special Civil Application No.9422 of 2007 is also required to be dismissed on the same terms. Accordingly Special Civil Application No.9422 of 2007 is dismissed. Ad-interim relief granted earlier stands vacated. So far as the directions given in para 12 of the order dated 27.11.2006 passed in OA No.224 of 2006 is concerned, the petitioners are directed to comply with the directions given in para 12 of the order dated 27.11.2006 within a period of three months from the date of receipt of the copy of this order. There shall be no order as to costs.