Calcutta HC Allows CISF Constable To Apply For Review Of Premature Retirement Order Imposed For Avoiding Transfers To Be With Specially Abled Child
The Calcutta High Court has come to the aid of a CISF Constable who had been prematurely retired by the Senior Commandant of his unit/DIG for refusing transfers to locations away from Kolkata, with leave of the High Court, to stay with his daughter who has special needs. In allowing the petitioner to place his case before the Review Board for reconsideration of his order of premature...
The Calcutta High Court has come to the aid of a CISF Constable who had been prematurely retired by the Senior Commandant of his unit/DIG for refusing transfers to locations away from Kolkata, with leave of the High Court, to stay with his daughter who has special needs.
In allowing the petitioner to place his case before the Review Board for reconsideration of his order of premature retirement, a single bench of Justice Raja Basu Chowdhury held:
I permit the petitioner to make a representation before the review committee. In the event the review succeeds then all consequential terminal benefits be made available to the petitioner by treating the petitioner to be in notional service till the date of normal superannuation. Needless to note that the aforesaid direction is being passed in the peculiar facts of the case. The above decision must be taken by the review committee within a period of six weeks from the date of making the representation along with the communication of this order, having due regard to the orders passed by the coordinate bench of this Hon'ble Court, and the special situation encountered by the petitioner on account of his specially abled child.
It was argued by the petitioner that he had been in service with the CISF at the Kolkata Port Trust, and had joined the forces in 1981.
It was argued that he had a specially-abled daughter, and for her education, he had been residing at his quarters in Kolkata and had requested to be retained in the same place and cancellation of his transfer to Assam.
Upon not hearing back from the authorities, it was submitted that the petitioner approached the Court which allowed his plea and quashed the order of transfer.
Petitioner submitted that he had moved another writ petition, in which the Court had allowed him to make a substantive representation to request a change of his transfer location.
It was argued that by an order in 2012, the Senior Commandant of his unit had asked him to apply for regularisation of the period in which he wasn't taken on duty, and subsequently passed an order prematurely retiring him from services.
Petitioner submitted that the DIG had no authority to prematurely retire him, and relied on the Central Government Rules to show that there were elaborate guidelines on prematurely retiring government servants, none of which had been followed in the present case.
It was submitted that an order of compulsory retirement could only be passed based on recommendations made by a committee constituted for that purpose and that the DIG not even being the head of the department, could not have taken such a call.
It was argued that the order of premature retirement was passed in overreach of the orders of the High Court and by ignoring the special needs of the petitioner's child.
The order is in the nature of a punishment, since, the decision to transfer him to remote places had been interfered with by this Hon'ble Court keeping in view the circular dated 3rd January, 1993 and the special need for his child. In such circumstances, the aforesaid order of compulsory retirement cannot be sustained and the same should be set aside, it was argued.
Counsel for the respondents submitted that the petitioner had not applied for a review of his order of premature retirement and that having not exhausted the statutory remedy, his writ petition would not be maintainable.
It was argued that the petitioner, throughout his service, had been awarded varying levels of punishment for misconduct and that the review board had taken these factors into account before recommending the senior commandant to issue the order of premature retirement.
It was submitted that the petitioner was a head constable, and the Reconstituted review board for head constable rank would be headed by the DIG, and the board had found the petitioner unfit to continue in service.
Upon going through the records of the case, including the earlier judgements delivered by co-ordinate benches, the Court observed that the petitioner had not been able to point out glaring inconsistencies in consideration of his records.
It was also held that the arguments made regarding the improper composition of the review board were fallacious and unacceptable and that under the CCS Pensions (Rules), 1972, the petitioner would still have three weeks to apply for consideration of his order of premature retirement by the Review board.
The Court however held that the petitioner's argument that the decision to prematurely retire him was a punishment and an overreach of the orders of the Court could not be ruled out.
By taking into consideration the peculiar facts of the case and subsequent communication dated 25th February 2012 issued by the senior commandant calling upon the petitioner to submit an application for regularization of his absence from duty from 17th December 2011 to 11th January 2012, and the order dated 13th March 2012, 13 being passed immediately thereafter, the petitioner's claim that he has been penalized and that the order impugned has been passed to overreach the orders passed on 22nd December 2011 cannot be completely ruled out, the Court concluded.
It was thus held that considering the peculiar facts of the case and the earlier orders of the High Court, the petitioner would be permitted to apply for consideration of his case by the Review Board, which would be required to decide on the same within six weeks.
Citation: 2023 LiveLaw (Cal) 7
Case: Swapan Kumar Roy Versus The Union of India & Ors.
Case No: WPA 6288 of 2012