Model Representation 7 Draft against notice for compulsory retirement under FR 56(j)

 One RMS official working at Delhi was issued notice under FR 56(j) and approached me for reply. The following is the draft I made in this case. This is just for the information of the blog readers.

Sub: - Notice under Clause (J) (ii) of Rule 56 of FR – Case of ……………….

Ref: -  Memo No. HRA/6/…../……./ dt. ……….

 

Apropos reference, I am rather shocked to know that I have been subjected under 56 (J) (ii) of F.R & Rule 48 of CCS (pension) Rules, 1972 arbitrarily and without any proper justification.

I am submitting the following for your kind consideration with the prayer to withdraw the decision and allow me to complete my full service.

At the outset, I wish to submit that there is no adverse complaint against me about my performance and I have not been proceeded with any charges. I am discharging my duties to the entire satisfaction of my supervisors and my integrity has never been doubted under any circumstances in the past.

In accordance with the Government of India instructions, the application of FR 56 (J) (ii) shall be made only on the following grounds: -

(i)           Government employees whose integrity is doubtful

(ii)          Government employees who are found to be ineffective. (This should be measured with the fitness/competence to continue the post he holds).

Accordingly, I have not been subjected to any of the above said reasons so far and the decision is arbitrary and against to the canon of natural justice.

Further, I am fortified with the Supreme court decision in the case of UOI Vs. Col J. N. Sinha that “the appropriate authority should bonafide form an opinion that it is in public service to retire the officer in exercise of the powers conferred by that provision and the decision should not be an arbitrary decision or should not be based on collateral grounds”. Since there is no adverse communications so far in my case, the decision of premature retirement is arbitrary and against to the orders on the subject.

It is further submitted that if any adverse entry available in record that should have been communicated and non communications of any such entry with regard to any doubtful integrity or non performance cannot be construed as an adverse effect on any employee as per the Supreme court observations in the case of UOI Vs. M. E. Reddy & another.

According to my knowledge screening committee had to be constituted as per Annexure II of Appendix V of CCS (Pension) Rules, 1972 to screen the record of employees against whom compulsory retirement is proposed by the Appointing Authority. It appears that the Appointing Authority did not constitute the required committee to screen my record and has arbitrarily taken the decision. Hence the impugned order is illegal and needs to be dropped or withdrawn.

I submit the following case-laws in the subject matter for your consideration.

Mohd. Islam Khan v. Military Secretary to the President of India, 1987 (2) SLJ (CAT) 147 (New Delhi Bench)- Swamy’s Case-Law Digest Volume I- Pages 233& 234

Power of compulsory retirement should not be exercised as a short cut to disciplinary proceedings.

A.N.Saxena, S.L.Behel v. Chief Commissioner, Administration and Commissioner of Income-Tax ATR 1988(1) CAT 326 (Delhi) Swamy’s Case-Law Digest Volume I- Pages 236 & 237

Order of compulsory retirement based on the uncommunicated adverse remarks in the Confidential Report and taking into account materials collected at the official’s back not sustainable.

Hardip Singh v. U.O.I & Ors, 1985 (2) SLR 71 (Panjab & Haryana) - Swamy’s Case-Law Digest Volume I- Page 223

Compulsory retirement solely based on charges which were subject matter of enquiry with a view to drop disciplinary proceedings is punitive in nature.

Y.Ganga Raju and others v. The Railway Board and others – 1983 (1) SLR 686 - Swamy’s Case-Law Digest Volume I- Page 223

Compulsory retirement if founded on specific misconduct is penal in nature, is not valid

M.J.Kunjukunju v. U.O.I & another, 1991(3) SLJ (CAT) 149 Ernakulm – Dated of Judgment 29.05.1991- Swamy’s Case-Law Digest Volume IV –Pages 175 & 176

Notice of compulsory retirement under Rule 48 of CCS (Pension) Rules, 1972 can be given only after completion of 30 years of service and not in anticipation.

Further as per the existing orders on the subject, if an official is accorded with promotion in the preceding five years by the DPC considering his services, he should not be subjected under the rules pertaining in this case. I have been accorded BCR with affect from 01.07.2009 considering my fitness and as such the present move is totally against to the spirit of the orders.

To the best of my consciousness, I am discharging my duties to the entire satisfaction of my supervisors. If there is any lacking and if pointed out, I will correct myself and do the best in the coming years. The premature retirement will cause unbearable burden in my family since I am to take care of my entire family.

Under these circumstances I beseech the benign and erudite …… to kindly consider my representation and withdraw the notice of retirement for which kind act I will ever be grateful to you sir.

 Thanking you in anticipation.