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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,

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    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.

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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

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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.