Monday, 28 September 2020
"PREMATURE COMPULSORY RETIREMENT " - WHY WE ARE OPPOSING IT?
Confederation of CGE & Workers
1. In the guise of strengthening the administration, the Central Government has issued updated orders to all Ministries/Departments for strict implementation of the provisions of Fundamental Rules 56(j), 56(l) and Rule 48 of Central Civil Services (Pension) Rules 1972, which empowers the authorities for retiring an employee prematurely in public interest. Eventhough the Rules are old, to give more teeth to it and also to plug all loopholes, the 2020 August 28th orders of Department of Personnel and Training (DOP&T) are made more stringent by incorporating various judgements of the Honourable Supreme Court relating to FR 56(j), FR 56(l) and Pension Rules 48. The time frame for conducting the review to “chop off deadwood” are also fixed for strict adherence by the authorities.
2. Right from 2014 onwards the above process was initiated. In a written reply to a Parliament question dated 3rd March 2020, Dr. Jithendra Singh, Minister of State for Ministry of Personnel, Public Grievances and Pensions has revealed that by invoking provisions of FR 56(j) and similar rules 163 Group A officers (including IAS, IPS and other officers of All India services) and 157 Group-B officers are compulsorily retired from service during the period from 2014 July to 2020 January. The number of lowest level Group-C employees compulsorily retired from service during this period is not available in the Minister’s reply. The reasons stated for premature retirement are lack of integrity and inefficiency. The Minister claimed that through such action in the interest of public, more responsible and efficient public services can be ensured and the speed, discipline and accountability of public services will be increased. Further, Government in the DOP&T orders dated 28th August 2020, has clarified that “premature retirement” under these rules cannot be termed as a “Penalty” and will not come under the purview of Central Civil Services (Classification, Control and Appeal) Rules 1965.
3. The revised orders has created a panicky situation among the Central Government employees, especially among those who are going to complete 50/55 years of age or 30 years of service. Anxiety, uncertainity and fear is visible among all section of employees. The large participation of employees in the “protest day” observed on 9th September 2020 as per the call given by Confederation of Central Government Employees & Workers, at all places and even in smaller offices, is a testimony to this reality. Irrespective of age, all employees are apprehensive of the implication of these orders on their job security.
4. *What is FR 56(j), 56(l) and Rule 48 of CCS (Pension Rules 1972:*
As mentioned above, earlier also these rules were there in the statute books. Central Government employees Unions/Federations including Confederation of Central Govt. Employees & Workers, has been demanding scrapping of these draconian rules. In the past, before 2014, these Rules were invoked in exceptional cases only, and the compulsory retirement under these rules were very rare. Hence there was no fear psychosis among the employees. As per these rules an officer who is authorised by the Government has “absolute right” to prematurely retire an employee from service in the public interest.
As per FR 56 (j) Group A and B officers who entered service before the age of 35 years can be prematurely retired in the public interest, on attaining the age of 50 years or more. If the officer has entered service after 35 years of age, he can be prematurely retired from service in the public interest on attaining the age of 55 years or more.
As per FR 56(l) an employee belonging to Group-C service or post who is not governed by any pension Rules, can be prematurely retired from service in the public interest after he has completed 30 years of service.
Rule 48(i)(b) of CCS (Pension) Rules 1972 empowers the appropriate authority to prematurely retire in the public interest, at any time after a Government servant has completed 30 years qualifying service. Before compulsorily retiring an official under these rules, three months show cause notice is to be served. If the authority wants the employee to be retired immediately, three months salary is to be paid in lieu of three month’s show cause notice.
5. All departmental authorities should keep a register of those employees who are to complete 50/55 years of age or 30 years service of service and periodical review of the register is to be done. Before deciding to retire an official prematurely, the recommendations of the “review committee” constituted under these rules, should be obtained by the Appointing authority. An employee who receive three months show cause notice or immediate retirement orders, can file a representation requesting to review the orders before the “Representation Committee” duly constituted by each department, within three weeks from the date of service of notice or order.
6. *OBSERVATIONS AND ORDERS OF HONOURABLE SUPREME COURT OF INDIA:*
The validity of FR 56(j), FR56(l) and Pension Rules 48 has been upheld by the Honourable Supreme Court in various judgements in the past. As per the Apex Court judgement, if the appropriate authority bonafide forms the opinion that the retention of a Government servant in service is not desirable in the public interest, the review committee can take decision to prematurely retire that employee. The Supreme Court further held that the right conferred on the appropriate authority is an absolute one and the correctness of that opinion cannot be challenged before Courts. The compulsory retirement under these rules is not to be treated as a punishment coming under Article 311 of the Constitution.
The Court ruled that in certain cases there may not be sufficient evidence to take punitive disciplinary action of removal from service. But the conduct and reputation of the employee is such that his continuance in service would be a menace to public service and injurious to public interest. In such cases, the review committee after considering the entire service record and character rolls or confidential reports may take the decision for premature retirement.
Similarly, the report of conduct unbecoming of a Government servant may also form the basis for compulsory retirement. As per the judgement of the Apex Court if the conduct of a Government employee becomes unbecoming to the public interest or obstructs efficiency in public services, the Government has an absolute right to compulsorily retire such an employee in public interest.
7. *WHY EMPLOYEES AND UNIONS/FEDERATIONS ARE OPPOSING THESE RULES:*
First reason is that these rules have no bounds or limits. “Integrity”, “inefficiency”, “unbecoming of public servant”, “in the interest of public service” or “public interest” etc. cannot be explained in a definitive manner. It can be stretched to any length. Those who are in power or those who are empowered to impose these provisions can define it to suit their interest. For example, in the Supreme Court judgement quoted in the DOP&T orders dated 28th August 2020 it is held that -
“If conduct of a Government employee becomes unbecoming to the public interest or obstructs the efficiency in public services, the Government has an absolute right to compulsorily retire such an employee in public interest.”
As per the CCS (Conduct) Rules 1964 applicable to Central Government employees, a Government servant has no right to strike and even any concerted action which retards the overall functioning of the office can be termed as a strike. Any violation of Copnduct rules becomes an act of “unbecoming of a Government Servant” which may attract the provisions of FR 56(j)(, FR 56(l) or Pension Rules 48. Further the Sulpreme Court ruled that if a Government servant “obstructs” the efficiency in public service, he can be compulsorily retired under these rules. Any strike or non-cooperation or go slow or mass dharna etc. can be termed as an action “obstructing the efficiency in public services” and those who participate can be prematurely retired. Supreme Court has also delivered categorical judgement that Government employees have no right to strike.
Similarly as per the latest instructions of the DOP&T, for promotion under MACP Scheme, “Very good” bench mark for continuous past five years is compulsory. All of us know that some officers are misusing their powers while writing benchmark grading of an official in the APAR and they utilise the APAR grading as a vindictive measure to settle their scores with the employees, especially trade union leaders, whom they don’t like for various reasons and they deliberately lower their bench mark to “average” and thereby denying MACP promotion. An official who is not fit for MACP promotion continuously for some years can be termed as “inefficient” and he can be considered by the review committee for premature retirement on attaining the age of 50/55 or 30 years serrvice. These are all the reasons, why we are telling that these rules have no bounds or limits and can be stretched and misused to any extent. (also read the example given in Para 10 of this article).
8. Secondly, no reason or reasons are to be communicated to an official before retiring him compulsorily under these rules. No opportunity to prove the innocence is given to an official before ordering premature retirement. If an official commits any misconduct or indulge in an act prejudicial to public interest, there are provisions in the CCS (CCA) Rules 1965 to charge sheet him, informing the official the articles of charges, giving an opportunity to examine the documents based on which the charges are framed and also to cross-examine the witnesses and thus to prove the innocence of the official. After observing all these formalities, Government can compulsorily retire an official. Unions or employees are not opposing such compulsory retirement awarded after observing all the due formalities under CCS (CCA) Rules 1965. But as per the provisions of FR 56(j), FR56(l) and Pension Rules 48, no such prior intimation of charges through charge sheet or no inquiry proceedings are to be conducted, before compulsorily retiring an official, that too an official with 30 years of service. In other words, these rules are framed to compulsorily retire employees without informing them the reason for such retirement either in writing or orally. As the whole process itself is in-camera (in secret), these rules are basically undemocratic and hence “black laws”. There are ample scope for misuse of these rules by certain officers against employees who are not in their “good book” for reasons best known to that authority, as a vindictive measure. (also read the example given in Para 11 of this article).
9. Thirdly, these rules can be used against Union leaders and activists and also against those who question the misuse of power or coruption or illegal acts of the authorities. In the Central Government services the service rules framed by the British raj are still in vogue, though they have been updated the spirit of the rules remains the same. For example, writing of Confidential Report (CR) by higher officer in respect of lower officials was introduced in India by the Britishers. The main aim of the CR was that the higher level officers (who were mostly britishers or their stooges) want the lower level officials (who are mostly Indians) to obey them like a slave. If he doesn’t obey them or show signs of questioning, adverse and damaging entries will be made in the CR (which at that time was not communicated to the officials) and the poor official will not get any increment (increment bar was there in the rules), or promotions and he has to either retire from the same post or he will be discharged from service without assigning any reason, whatsoever. Thus employees are terrorised and fear physosis was created among them. Eventhough, India became independent in 1947, even after 70 years the CR is still retained in the statute book, though its name is first changed to Annual Confidential Report (ACR) and then as Annual Performance Appraisal Report (APAR). The same is the case with many other rules. This is the reason why Confederation of Central Government employees and workers and like-minded organisations are demanding “democratisation of service rules” of Central Government employees including Railway employees. Unfortunately, the Government refused to heed our request and the black laws like Article 311(2)(b), 311(2)(c), FR56(j), FR56(l), Rule 48 of CCS (Pension) Rules 1972, still remain as a “democles sword” hanging over the head of each employee. In the past there are instances of misuse of these provisions against Trade Union leaders and activists. Com: Sukomal Sen, the legendary leader of Government employees and the working class was dismissed from service under Article 311(2)(c) of the Constitution. Com.N.B.Thrivikraman Pillai, the fire-brand leader of AG’s Office NGO Association, Kerala was also terminated under Article 311(2)(c). India is a founder member of International Labour Organisation (ILO). The ILO conventions 87 and 98 clearly stipulates that the workers including Government employees have the right for collective bargaining and also right to strike. But these conventions are not still ratified by Government of India. In a democracy, trade union leaders may question the anti-worker policies of the Government and also the misuse of power, corruption and other illegal acts of the higher authorities. They will organise agitational programmes and even give call for strikes when all other remedies fail. The above black laws are used by the authorities to “teach them a lesson” and to “target them” for questioning the ruling class or the authorities. They will be “black-listed” and they can be dismissed or removed or terminated or compulsorily retired, invoking the pmrovisions of above rules, without assigning any cogent or specific reason.
10. To make the above observations more clear, I am citing below the cases of two Central Government employees who became victims of these black laws. First is the case of a Railway employee, Com.R.K.Unnikrishnan, who was working as Station Superintendent at Manjeswar Railway Station in Kasaragod District of Kerala State. Com: Unnikrishnan was compulsorily retired from service in August 2019, at the age of 57 years under the provisions of Railway rules which is a replica of FR 56(j), (l) and Pension Rulles 48, without giving him time even to breath, by paying him salary for three months along with compulsory retirement orders, and relieved on the spot from service. I have personally verified all the service records including APAR grading of Com: Unnikrishnan. All the bench mark gradings in the APAR are “good”. Further, Com: Unnikrishnan was awarded with “Certificatre of Merit for meritorious service” for three times by the same Railway authorities.
Eventhough Com: Unnikrishnan’s performance as a Railway employee was outstanding and his devotion to duty was never questioned, he was an active trade union activist. He used to question and raise his voice against the misuse of power, corruption and other illegal activities of some of the authorities. Hence he became a headache for the authorities and they decided to get rid of him invoking the provisions of the above rules. The axe of compulsory retirement fell on his neck and he was silenced.
11. Second case is that of Com: S.C.Jain, the then Circle Secretary of All India Postal Employees Union Group-C, Madhya Pradesh State. He was a leader of National Federation of Postal Employees (NFPE) and Confederation of Central Government Employees and Workers. In 2012, one fine morning, Com.Jain was served with a three months show-cause notice for premature retirement under pension Rules 48 by the Postal authorities. I was Secretary General of NFPE at that time and I went to Bhopal immediately and met the Chief Postmaster General (CPMG) and discussed the case with him. The CPMG was angry and he declared that “as long as I am sitting in this chair as Chief PMG, Jain will not be allowed to continue in service”. When I asked him what is reason for such an extreme step, he told that Com: Jain is organising frequently agitational programmes against the Circle administration and recently during the agitation of Postmen Staff, he conducted a press conference and criticised the stand of CPMG. This was widely reported in all leading news papers and thereby tarnished the image of the CPMG among the public. As CPMG was very adamant, I returned to New Delhi and met the Secretary, Department of Posts. Secretary, Posts, assured that the appeal (representation) of Com: Jain before the Representation Committee will be considered dispassionately and on merits. In the CR/ACR/APAR of Com: Jain, there was not even a single adverse entry. The one and the only reason noted by the Review Committee in their findings was that Com: Jain was a habitual striker and he went on more than 30 days strike during his entire carrier, thus indulging in an act of unbecoming of a Government servant, Later on, due to the efforts of NFPE, Com: Jain’s show cause notice for compulsory retirement was set aside and withdrawn by the Representation Committee.
12. *WHY THESE DRACONIAN RULES ARE RE-CIRCULATED NOW WITH MORE TEETH AND STRINGENT CLAUSES:*
The Central Government is going ahead with implementation of pro-corporate and anti-working class neo-liberal reforms in an aggressive manner. All sections of the working class and peasants are on struggle path. Central Government employees are no exception. Large scale outsourcing, ban on creation of posts, non-filling up of about seven lakhs vacancies, move to corporatise Railways, defence ordnance factories and Department of Posts, Privatisation of various functions of the Government, freezing and impounding of Dearness Allowance and Dearness Relief, closure or merger of various Central Government establishments, refusal to scrap Contributory Pension Scheme (NPS) or to guarantee 50% of last pay drawn as minimum pension, refusal to modify retrograde recommendations of 7th Central Pay Commission, non-implementation of the assurance given to JCM (staff side) leaders by the Group of Ministers regarding increase in Minimum Pay and Fitment formula, rejecting the demand of granting Civil Servant status to Gramin Dak Sevaks and also regularisation of Casual and Contract Workers - all these are the direct outcome of the neo-liberal reforms. All these measures have provoked the Central Government employees and their anger, protest and discontentment is growing day by day. Defence Employees Federations have served indefinite strike notice. Railway Unions are joining together and campaigning against the Railway privatisation. Other section including Postal employees are also on struggle path under the banner of Confederation of Central Government Employees and Workers.
Government want to silence the employees and workers by terrorising them and want to suppress their struggles by victimising those who come out openly against these onslaughts. The aggressive move of the Government to suppress and alter labour rights legislations is a direct attack on the democratic rights of the working class. The draconian rules FR 56(j), FR56(l) and Rule 48 of CCS (Pension) Rules 1972 are powerful weapons in the hands of the Government to terrorise the employees and to make the higher level officers “more loyal than the king”. This is why Confederation of Central Government Employees & Workers and like-minded, organisations are demanding scrapping of these draconian rules and democratisation of other service rules.
While vowing to continue our fight against these black laws, we like to remind the authorities in clear terms that - “you can destroy a few roses, but you cannot prevent the onset of spring”.