PETITIONER: UNION OF INDIA Vs. RESPONDENT: AJOY KUMAR PATNAIK DATE OF JUDGMENT08/09/1995 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. HANSARIA B.L. (J) CITATION: 1996 AIR 280 1995 SCC (6) 442 JT 1995 (7) 30 1995 SCALE (5)490 ACT: HEADNOTE: JUDGMENT:
O R D E R
Leave granted.
This appeal by special leave arises from the order of
the Central Administrative Tribunal, Bombay Bench dated July
19, 1991 made in O.A. No.425 of 1986. The respondent’s case,
while workings as Collector of Customs (Appeals) at Bombay,
after completing 50 years of service, had come up before a
screening committee consisting of senior officers to review
the respondent’s performance for continuance in service. The
committee met on February 11, 1984. On consideration of the
entire material placed before it, it recommended to
compulsorily retire the respondent from service under
Fundamental Rule 56(j) on “doubtful integrity”. The
competent authority passed the order on February 10, 1986
under F.R.56(j) of the Fundamental Rules compulsorily
retiring him in public interest. As stated earlier, the
respondent had questioned the correctness thereof in the
Administrative Tribunal which by its order had set aside the
order on the ground that there are no adverse entry in the
Character Rolls of “doubtful integrity” of the respondent
and that, therefore, the two instances should not be taken
into consideration in compulsorily retiring the respondent
from service.
To satisfy ourselves whether the action of the
appellant is based on any material, since the Tribunal had
given finding that it had perused the record and was not
satisfied, we had directed Shri N.N. Goswami, the learned
senior counsel for the appellant, to keep the record ready
and place before us the Character Rolls as well as the
report submitted to the Review Committee, views of the
Review Committee made in that behalf. This has been done. We
have perused the proceedings of the Review Committee dated
December 24, 1985, stating :
“The Review Committee considered the
report of the Screening Committee,
forwarded to us under Chairman CBEC’s
note dated 18.12.1985. The Review
Committee considered the report and the
records and agrees with the
recommendation that Shri D.P. Arya and
Shri A.K. Patnaik are fit to be
prematurely retired under FR 56(j).”
We have seen the material placed before the Screening
Committee, the Review Committee and the competent Authority
in the proceedings referred to hereinbefore. It is stated
that the department had given classification guidance for
classifying Dodecyl Benzene under Heading 17.10(1) as
against Heading 38.01/19. The Collector of Customs, Bombay,
had issued a Departmental Tariff Advice on the basis of the
minutes of the Tariff Conference held at Mangalore in
September, 1984 according to which Dodecyl Benzene was to be
classified under Heading 38.19. The Advice of the C.C.C.
Nomenclature Directorate was mentioned in the Tariff Advice.
The date of this advice is 28.12.1984 and the date of the
appellate decision bears dated 31.12.1984 which is very
close to the date of the advice. Even as late as October,
1985, Shri Patnaik (the respondent herein) continued to
classify Dodecyl Benzena as before the issue of the Tariff
Advice. They concluded that by the wrong classification, the
respondent had given benefit to a single party, namely, M/s.
Rajesh & Sons of Bombay alone to the tune of more than Rs. 2
crores. Similarly, in 32 appeals which the respondent has
disposed of, he classified Saccharine to be cleared under
REP Licence as “Electroplating Brightener”, in spite of the
fact that the Import Policy in condition No. 5 of Appendix
17 is clear that this cannot be done, as Sacchrine has been
specifically banned under Appendix 4, and an item allowed on
an REP Licence under Appendix 17 of the Policy should either
be one which has been specifically named in that Appendix
which, Saccharine was not, or it should not be a banned
item, which Saccharine was. On the basis of this material,
they doubted the integrity of the respondent and had taken
decision to compulsorily retire the officer from service.
It is contended by the counsel for the respondent that
he was not communicated the instructions regarding the first
item. It is also contended with regard to the second item
that he was entitled to dispose of the matter on merits and
had taken judicial decision on the basis of the material
placed before him as an appellate authority and he was not
responsible for the clearance of the goods.
We are not concerned with the merits in the matter of
disposal or manner of disposal of the appeals or
classification. We are concerned with regard to the
integrity of the officer in the decision making process.
When the authorities had material before them and considered
that material to be sufficient to doubt the integrity of the
officer, it is settled law that the authority competent to
take the decision to compulsorily retire the officer can
form an opinion whether continuance of such officer is in
the public interest. It has gone into the conduct of the
officer and that his conduct in the manner of disposal of
the appeals as quasi judicial authority does encompass into
misconduct for taking disciplinary action.
In S. Govinda Menon v. Union of India & Anr. [AIR 1967
SC 1274], the appellant, an ICS officer was Commissioner of
Hindu Religious and Charitable Endowments. He disposed of
grant of lease of the endowment lands contrary to the
statute. He was charged for misconduct. He questioned the
show cause notice by filing a writ petition. Pending writ
petition, the enquiry officer submitted his report.
Thereafter, he amended and writ of prohibition was sought.
The principal contention raised therein was that his order
was quasi judicial. Mathew, J. as he then was negatived the
contention while S.V. Pillai, J. accepted the contention
that quasi judicial decision having become final and
conclusive, the conduct of quasi judicial orders cannot be
the subject of an enquiry for misconduct. On reference,
Govinda Menon, J. agreed with Justice Mathew and dismissed
the writ petition. When appeal was filed, this Court held
that although the Commissioner acted as an authority under
the Hindu Religious & Endowment Acts and was not subject to
administrative control of the Government as a master and
servant, still the proceeding for such acts can be
instituted against him, if there is prima facie material to
show recklessness or misconduct on his part. It is not
necessary that the appellant should have committed the
alleged act or omission in the course of discharge of his
duties as a servant of the Government in order that it may
form the subject matter of disciplinary proceedings. If the
act or omission is such as to reflect on the reputation of
the officer or his integrity or good faith or devotion to
duty, there is no reason why disciplinary proceeding should
not be taken against him for that act or omission relating
to an activity in regard to which there is no actual master
and servant relationship. To put it differently, this Court
said that the test is not whether the act or omission was
committed by the appellant in the course of his discharge of
his duties as servant of the Government. The test is whether
the act or omission has some reasonable connection with the
nature and condition of his service or whether the act or
omission has cast any reflection upon the reputation of the
member of the service for doubting integrity or devotion to
duty as a public servant.
In V.R. Katarki v. State of Karnataka [C.A. No.4392/86,
dated March 22, 1990], a Bench of this Court to which one of
us (K. Ramaswamy, J.) was a member, the appellant was
imputed with misconduct in fixing, in his capacity as Civil
Judge at Baglkot, “higher valuation than was legitimate of
the lands.” After conducting an enquiry and finding guilty
of misconduct, he was dismissed from service which was
confirmed by the High Court on judicial side. When the
appeal had come up, this Court was requested not to go into
the question of the valuation since that was subject matter
of an appeal in the High Court. This Court disposed of the
appeal holding thus: “We would like to make a special
mention of the position that even if the assessment of
valuation is modified or affirmed in an appeal as a part of
the judicial process, the conduct of the judicial officer
drawable from an overall picture of the matter would yet be
available to be looked into. “In appropriate cases it may be
opened to draw inferences even from judicial acts”. Thus the
appeal was dismissed confirming dismissal from service. This
ratio was followed in Periyar and Pareekanni Rubbers Ltd. v.
State of Kerala [AIR 1990 SC 2192 at 2198] to which one of
us (K. Ramaswamy,J.) was a member, and this Court held that
“The rule of conduct spurned by this Court squarely put the
nail on the official act as a refuge to fix arbitrary and
unreasonable market value and the person concerned shall not
camouflage the official act to a hidden conduct in the
function of fixing arbitrary or unreasonable compensation to
the acquired land.”
It would thus be clear that an officer though performs
official quasi judicial functions, his conduct in the
discharge of the quasi judicial act or omission relates to
the activity in the course of the discharge of his duties as
a servant of the Government and bears reasonable relation or
nexus with the nature and conduct of the service and when it
casts reflection upon his reputation, integrity or devotion
to duty as a public servant, that would be squarely
referable to the conduct of the public servant amenable to
disciplinary proceeding. When it is a misconduct, the
competent authority is equally entitled to take a decision
whether an officer has impeccable integrity and absolute
devotion to duty for further continuation in service. The
competent authority would be free to consider the material,
particularly the latest one, and form a bona fide decision
in the public interest to compulsorily retire an officer
from service.
Since the competent authorities at different levels had
considered the material and ultimately had decided to
compulsorily retire the respondent from service, it cannot
be said that it is an arbitrary decision. It is true that
pending the proceedings the respondent has already retired
from service on attaining the age of superannuation, but
that would not provide a ground nor to dispose of this
matter without giving any finding on the action taken by the
competent authority. Otherwise, in all cases it would cause
grave damage to public justice. The employee would get away
with it due to pending proceedings. Therefore, it needs to
be considered and decision rendered thereon whether the
action taken by the Government or the competent authority is
valid in law. In that perspective, mere retirement of the
officer by efflux of time pending proceedings would not be a
ground to close the matter.
The appeal is accordingly allowed and the order of the
Tribunal is set aside and that of the appellant is upheld.
But in the circumstances without costs.