M. Krishnan
Vice President,
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”.
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