UNION OF INDIA Vs. P S DHILLON

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of the Central Administrative Tribunal. Chandigarh Branch, (hereinafter referred to as 'the Tribunal') dated January 31, 1992 in O. A. No. 668 P. B./1987 filed by the respondent wherein he had challenged the validity of the order of compulsory retirement dated January 28, 1987, passed under Fundamental Rule 56(j). The said order of compulsory retirement has been quashed by the Tribunal by the impugned judgment.

(2.) The respondent was practising as an advocate in the High Court of Punjab and Haryana. He was appointed on probation as a Judicial Member of the Income-tax Appellate Tribunal (for short 'ITAT') by order dated February 25, 1978. The period of probation was two years. The said period of probation was, however, extended from time to time and the respondent continued on probation till March 31, 1985. By order dated May 24, 1985, the respondent was deemed to have completed his period of probation satisfactorily on March 31, 1985. By order dated June 3, 1985, he was confirmed in the post of Member, ITAT with effect from April 1, 1985. As member of the ITAT the respondent was posted at Allahabad, Bombay, Madras, Ahmedabad and Amritsar. Even since his appointment as a member of the ITAT complaints were being received against the respondent from his colleagues, staff of the ITAT and members of the Bar. There was an adverse entry in the Annual Confidential Report (for short 'ACR') of the respondent for the year 1983. The respondent submitted a representation against the said adverse remarks which came up for consideration before the Appointments Committee of the Cabinet (for short 'ACC'). While rejecting the said representation the ACC observed that the respondent had completed the age of 55 years and that this was a fit case for the competent authority to consider whether action for his premature retirement from service should be initiated. Before, initiating further action against him the respondent was called for a hearing by the Minister for Law and Justice on November 5, 1986. In the meanwhile, a complaint was received from the wife of the respondent about his having deserted her and his openly living with another lady. In the ACR for the year ending December 31, 1985, there were adverse remarks by the Reporting Officer with which the Reviewing Officer had agreed. When he met the Law Minister, the respondent admitted that he was living with a lady and stated that she was cooking for him and that he had to live with her and his wife and children had left him. Since the Ministry of Law and Justice was the cadre controlling authority, the Law Secretary to the Government of India, vide his note dated December 22, 1986, submitted his recommendation to the Cabinet Secretary for the compulsory retirement of the respondent. The Cabinet Secretary placed the matter before the ACC with his recommendation and the ACC approved the premature retirement of the respondent under FR 56 (j) and thereupon the order dated January 28, 1987, was passed whereby the respondent was compulsorily retired from service. The respondent filed an application before the Tribunal challenging the said order of compulsory retirement. The said application was allowed by the Tribunal by the impugned judgment and the order of compulsory retirement has been quashed. Hence this appeal.

(3.) One of the contentions urged before the Tribunal on behalf of the respondent was that FR 56(j) was not applicable to members of the ITAT in view of Rule 11 of the Income-tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963, (hereinafter referred to as 'the rules') whereby the age of retirement of a member of the ITAT has been fixed at 62 years and it is further provided that the date of compulsory retirement of a member would be the date of his attaining the age of 62 years and not the last date of the month as in the case of other Government servants. It was submitted that since a specific provision has been made in Rule 11 of the Rules with regard to retirement of the members of the ITAT and no express provision is contained in the Rules for premature retirement, the respondent could not be retired prior to his attaining the age of 62 years under FR 56(j). The Tribunal has rejected the said contention of the respondent in view of Rule 13 of the Rules wherein it is provided that conditions of service of a member in respect of matters for which no provision is made in the Rules shall be the same as may, for the time being, be applicable to other employees of the Government of India of a corresponding status. The Tribunal has held that Rule 11, whereby the age of retirement is prescribed at 62 years, only provides an exception to the general rule and could not be construed to mean that it completely substitutes or supersedes the provisions of FR 56. The Tribunal has also rejected the contention urged on behalf of the respondent that the impugned order of compulsory retirement was penal in nature since the respondent has been retired before he completed 10 years of qualifying service which would have enabled him to draw pensionary benefits. The Tribunal has held that in the matter of pensionary benefits after retirement the position has to be adjudged as per the existing rules on the subject on the relevant date of retirement/premature retirement and that the respondent having put in nearly nine years of service on the date of his premature retirement has been paid service gratuity as admissible to him. The Tribunal has set aside the order of compulsory retirement for the reason that the adverse material against the respondent prior to April 1, 1985, the date with effect from which he was confirmed on the post of member of the ITAT, has to be disregarded and after excluding the same, there was only one adverse entry relating to the year 1985, against which the respondent had submitted a representation. The Tribunal was also of the view that the respondent had submitted his explanation vide his letter dated January 20, 1987, to the complaint sent by his wife and that the services of the respondent were terminated by order dated January 28, 1987, before this explanation reached the concerned quarters or was taken into consideration. The Tribunal has also held that in the matter of passing the order of compulsory retirement safeguards contained in the guidelines laid down in O. M. dated January 5, 1978, were not followed inasmuch as the proposal was initiated by the Law Minister, on whose direction a note was submitted by the Law Secretary to the Cabinet Secretary and that the Cabinet Secretary had not made the recommendation direct to the ACC. The Tribunal further held that there was non compliance with the said guidelines also in the matter of consideration of representation submitted by the respondent against the order of compulsory retirement inasmuch as under the guidelines the representation was required to be considered by the Senior Selection Board and it is required to make its recommendations to the ACC for taking final decision and that, in the present case, the representation submitted by the respondent was examined only in the Ministry of Law and Justice and the matter was submitted directly to the ACC without it being considered by the Senior Selection Board.