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1996 Supreme(SC) 770
1996(3) Supreme 654
SUPREME COURT OF INDIA
S.C. Agrawal and G.T. Nanavati, JJ.
Union of India -Appellant
versus
P.S. Dhillon -Respondent
Civil Appeal No. 3806 of 1992
Decided on 12-4-1996
IMPORTANT POINT
A member of the Income Tax Appellate Tribunal is an officer of the rank of Additional Secretary and in his case the cabinet Secretary is required to make his recommendation directly to the Appointments Committee of the cabinet for orders of compulsory retirement under FR 56(j).
Headnote:(i) Service Law-Fundamental Rule 56(j)-Order of compulsory retirement under-Validity of-Respondent appointed as a Judicial Member of Income Tax Appellate Tribunal-Action for his compulsory retirement under FR 56(j) could be taken on his attaining age of fifty five years. (Para 5)
(ii) Service Law-FR 56(j)-OM dated 5-1-1978-Pre-mature retirement-Validity-A member of Income Tax Appellate Tribunal-An officer of rank of Additional Secretary-Cabinet Secretary is required to make his recommendation directly to ACC for orders-There was no non-compliance with guidelines laid down in OM dated January 5, 1978 unasmuch as proposal was initiated by Ministry of Law and Justice and not by Cabinet Secretary-Composition of Representation Committee-Representation of respondent was required to be dealt with by ACC on basis of recommendation of cabinet secretary.
Held : In the present case, the proposal for premature retirement of the respondent was initiated in the Ministry of Law and Justice, the concerned ministry, and before initiating the proposal the respondent was given a hearing by the Law Minister on November 5, 1986 as regards the various complaints that had been received against the respondent with regard to his performance as a member of the ITAT as well as the complaint sent by his wife. Thereafter, the recommendation for compulsory retirement of the respondent was sent by the Law Secretary to the Cabinet Secretary and the Cabinet Secretary placed the matter for consideration before the ACC with his recommendation. The proposal was accepted by the ACC and thereafter the order for compulsory retirement of the respondent was passed. We are unable to hold that there was non compliance with the guidelines laid down in OM dated January 5, 1978 inasmuch as the proposal was initiated by the Ministry of Law and Justice and not by the Cabinet Secretary. Since the respondent was functioning under the Ministry of Law and Justice and his record of service was kept in that ministry it was the said ministry alone that could initiate the proposal for premature retirement of the respondent. The matter could reach the Cabinet Secretary only after the proposal was initiated by the Ministry of Law and Justice. It is difficult to appreciate how the Cabinet Secretary in the absence of the proposal from the Ministry of Law and Justice could have sent his recommendation to the ACC. It cannot, therefore, be said that thee was non-compliance with the instructions laid down in the OM dated January 5, 1978 in the matter of submission of recommendations for the compulsory retirement of the respondent before A.C.C. and the order of compulsory retirement cannot be held to be vitiated on that account. (Para 8)
Further Held : The Tribunal has held that it was necessary that the representation should have been considered by the Senior Selection Board and the said Board should have sent the same to the ACC with its recommendations. In taking this view the Tribunal has failed to note that the Senior Selection Board has no role to play at the stage of review in respect of officers of the rank of Additional Secretary, Special Secretary and Secretary to the Goverment of India and in respect of these officers it is the Cabinet Secretary who has been constituted as the Review Committee and who makes his recommendation directly to ACC. It would be anomalous that though at the stage of review it is the Cabinet Secretary who has to consider and make his recommendation directly to the ACC he should be excluded at the stage of consideration of the representation and the Senior Selection Board wich had no role to play at the stage of review should be entrusted with consideration of representation in respect of officers of the rank of Additional Secretary, Special Secretary and Secretary to the Government. This anomaly would be avoided if the provision regarding composition of Representation Committee contained in Appendix II to OM dated January 5, 1978 is construed as applicable in respect of officers upto the rank of Joint Secretary to the Government and in respect of officers of the rank of Additional Secretary, Special Secretary and Secretary to the Government, the authority competent to deal with the representation and to make the recommendation to the ACC is the Cabinet Secretary who had considered the matter of compulsory retirement at the stage of review. On that view of the matter the representation of the respondent against the order for his compulsory retirement was required to be dealt with by the ACC on the basis of the recommendation of the Cabinet Secretary and it was not necessary to refer the representation to the Senior Selection Board. This was done in the instant case inasmuch as the representation submitted by the respondent was forwarded to the ACC by the Cabinet Secretary with his recommendations. (Para 10)
(iii) Service Law-FR 56(j)-Compulsory Retirement-Validity-Respondent was confirmed on post of member of Income Tax Appellate Tribunal w.e.f. April 1, 1985 after granting six extensions in period of probation--Entire service record of respondent including record for period prior to April 1, 1985 had to be taken into consideration.
Held : Keeping in view the circumstances attendant to his confirmation as member of the ITAT with effect from April 1, 1985, we are unable to agree with the Tribunal that after such confirmation the adverse material ont he record for the period prior to April 1, 1985should be disregarded. In our opinion, the entire service record of the respondent including the record for the period prior to April 1, 1985 had to be taken into consideration by the appropriate authority. The service record of the respondent shows :
(i) There were complaints about his behaviour from the members of the Bar and his colleagues and the staff in the ITAT and his confirmation as member was delayed till April 1, 1985 and he was given six extensions in the period of probation.
(ii) The remarks in the ACR of the year ending December 31, 1985 show that there was no improvement in his behaviour as well as his peformance.
(iii) There was complaint about his conduct by his wife that he was living with another lady which fact was not disputed by him when he was given a hearing by the Law Minister on November 5, 1986.
13. Having regard to these circumstances, it is not possible to say that there was no sufficient material for the appropriate authority to form the requisite opinion that further retention of the respondent in service was not in public interest. (Paras 12 & 13)
(iv) Service Law--FR 56(j)-Compulsory retirement-Validity of-Respondent appointed as a member of Income Tax Appellate Tribunal after he attained age of 35 years-Order of compulsory retirement was passed after he attained age of 55 years-Merely because period of service rendered by him was less than 10 years, it cannot be said that order was an order of removal of service and not an order of compulsory retirement.
Held : Under FR 56(j) an officer could be compulsorily retired on attaining the age of 50 years if he was appointd before he completed the age of 35 years and an officer who was appointed after attaining the age of 35 could be retired on completing the age of 55 years. The respondent was appointed as a member of the ITAT after he had attained the age of 35 years and in his case the power of compulsory retirement could be invoked after he had attained the age of 55 years. Admittedly the respondent had attained the age of 55 years when the order dated January 28, 1987 with regard to his compulsory retirement was passed. Merely because the period of service rendered by the respondent was less than 10 years, which is the period of qualifying service required for grant of pensionary benefits, it cannot be said that the order dated January 28, 1986 was an order of removal of service and not an order of compulsory retirement. (Para 14)
JUDGMENT
S.C. Agrawal, J.-This appeal by special leave is directed against the judgment of the Central Administrative Tribunal, Chandigarh Bench, (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 deemd 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. Ever since his appointemnt 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 ). Whle 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 lving with another layd. 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 as 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 compulsoriyly retired from service. The respondent filed an application before the Tribunal challenging the said order of compulsory retirment. 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 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 serva
