Madras High Court
C.Palaniswamy vs Food Corporation Of India on 20 December, 2011
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.12.2011 Coram: THE HONOURABLE MR.JUSTICE S.RAJESWARAN Writ Petition.No.34405 of 2007 and M.P.No.2 of 2007 C.Palaniswamy .. Petitioner vs. 1.Food Corporation of India Rep. By its Chairman/Managing Director, No.16-20, Barakhampalane, New Delhi 110 001. 2.The Zonal Manager (South), Food Corporation of India, Zonal Office, Haddows Road, Chennai. .. Respondents This writ petition is filed for a writ of Certiorarified Mandamus, to call for the rcords of the 1st respondent dated 02.04.2004 made in file No.9(3)/96/E1 and also dated 02.07.1996 made in file lNo.9(2)/93/E1 and quash the said order of the first respondent dated 02.04.2004 and 02.07.1996 and consequently direct the respondent to consider the case of the petitioner for the purpose of payment of terminal benefits that he was in service till he attained the age of superannuation and to pay all the arrears of back wages, pension, gratuity, etc., taking into account that he was in service till he attain the age of superannuation. For Petitioner : Mr.J.Abishek for Mr.A.Jenasenan For Respondents : Mr.A.S.Thambuswamy ORDER
This writ petition has been filed for issuance of writ of Certiorarified Mandamus, to call for the rcords of the 1st respondent dated 02.04.2004 made in file No.9(3)/96/E1 and also dated 02.07.1996 made in file lNo.9(2)/93/E1 and quash the said order of the first respondent dated 02.04.2004 and 02.07.1996 and consequently direct the respondent to consider the case of the petitioner for the purpose of payment of terminal benefits that he was in service till he attained the age of superannuation and to pay all the arrears of back wages, pension, gratuity, etc., taking into account that he was in service till he attain the age of superannuation.
2. The case of the petitioner as given in the affidavit filed in support of the writ petition is as follows:
The petitioner was selected and appointed as Deputy General Manager in 1998 in the respondent Corporation and he wa sposted in various places. A minor punishment was imposed on the petitioner on 26.06.1994 for a lapse said to have taken place in 1988 and a penalty of stoppage of one increment for two years without cumulative effect with effect from 01.01.1995 was imposed. An appeal was filed by the petitioner to the first respondent against the minor punishment and the first respondent by order dated 19.05.1999 set aside the penalty imposed by the disciplinary authority. Therefore the entire career of the petitioner right from 1997 when he was recruited as Assistant Manager of Food Corporation of India till his retirement, no punishment, even a minor punishment was imposed on the petitioner.
3. While so, to the shock and surprise of the petitioner, the first respondent by order dated 02.07.1996 compulsorily retired the petitioner from service of the Corporation. As already stated when the order was passed compulsorily retiring the petitioner, there was a punishment imposed upon the petitioner on 26.07.1994 imposing a minor penalty of stoppage of one increment and at the time of passing the order dated 02.07.1996, the appeal was pending before the first respondent against the imposition of said penalty. Aggrieved against the order of compulsory retirement dated 02.07.1996, the petitioner filed a writ petition in W.P.No.9993 of 1996 for quashing the said order and for consequential restoration of the petitioner as the Deputy General Manager and grant all the attendant benefits. This Court on 22.10.2003, after finding that even the minor penalty of stoppage of increment for two years was not in force as on that date and no other past records requiring the petitioner to be compulsorily retired were produced before the Court, directed the petitioner to make a detailed representation to the first respondent. The petitioner was also given the liberty to bring to the notice of the first respondent about the subsequent order of the Appellate Authority in setting aside the only punishment of stoppage of increment imposed on the petitioner. The first respondent was directed to consider the same on merits and pass orders in accordance with law. Accordingly, the petitioner made a representation on 15.11.2003 but, the first respondent rejected the appeal submitted by the petitioner on 02.04.2004. Challenging the said order dated 02.04.2004, the petitioner filed a contempt petition to punish the respondent for disobeying the orders of the Court dated 22.10.2003. But, this Court by order dated 05.04.2007, held that by the subsequent order dated 02.04.2004, direction issued by the Court in the said writ petition has been complied with and therefore, there was no conempt. However, this Court observed that the dismissal of the contempt petition would not stand in the way of the petitioner to question the said order dated 02.04.2004 on all available grounds. Therefore, this writ petition has been filed challenging the said order dated 02.04.2004 and the order of the Appellate Authority dated 02.07.1996.
4. The respondent has entered appearance through counsel and filed a counter wherein they have stated as follows:
The petitioner while he was working as a District Manager, Food Corporation of India, North Lakshmipuri during 1988-89, was found wanting in his conduct and violated the conduct regulations by passing the transportation bill of one Sri.Pulin Bara, the transport contractor at the rate of Rs.14.50 per M.T./km instead of Rs.4.50 per M.T/km for a total amount of Rs.3,46,129.05/- and allowed payment of excess amount of Rs.2,36,979.69/-. Although it is a serious misconduct on the part of the petitioner, the management taking a lenient view, imposed a minor penalty of stoppage of one increment for two years without cumulative effect from 01.01.1995 by an order dated 26.07.1994. On appeal, the first respondent set aside the said order of penalty taking into account the subsequent recovery from the Contractor. By the order dated 02.07.1996, the petitioner was compulsorily retired under Regulation 22(2) of Food Corporation of India (Staff) Regulations, 1971 and this order of retirement is legally valid and sustainable as it has been done in the interest of the Corporation. Further, the Corporation has the right to retire an employee after he has attained the age of 50 years and after giving the employee three months notice in writing or three months pay and allowance in lieu of such notice. Referring to Regulation 22(2), it was stated that the order of compulsory retirement passed by the respondents cannot be found fault with.
5. Further, the respondent submits that in the meeting held on 06.06.1996 and 26.06.1996, the Review committee consisting of the Managing Director, Executive Director (Per), Executive Director (Vigilance) have reviewed the case of 182 category-I officers, who have completed 50 years of age during the period 01.07.1992 to 30.06.1993. That committee after examining the records and assessing the performance of the petitioner came to the conclusion that the petitioner was not fit to continue in the service of the Corporation and hence they have decided to retire him compulsorily. Even in another such Review Committee Meeting held earlier, an order of compulsory retirement was passed against one Thiru.Ramakrishnan, Deputy Manager. Therefore, it is not a single case of the petitioner alone and the petitioner has not been singled out for premature retirement. Since the guideline has been followed in this regard, there is no illegality or arbitrariness in the order passed by the respondent Corporation. The representation dated 10.07.1996 submitted by the petitioner against his premature retirement under Regulation 22(2) of Food Corporation of India (Staff) Regulations, 1971 issued on 02.07.1997 placed before the appropriate committee. The committee in its meeting held on 29.10.1996 took note of the fact that the petitioner has filed a writ petition in this Court, after availing the alternative remedy of filing an appeal. Therefore, there is no infirmity or illegality in the order passed by the Appellate Authority and the consequent order of the first respondent. Hence, they prayed for the dismissal of the writ petition.
6. I have heard the learned counsel appearing for the writ petitioner and the learned counsel appearing for the respondents. I have also gone through the documents available on record including the counter affidavit filed by the respondent Corporation.
7. The learned counsel for the petitioner has referred to the earlier order passed by this Court in W.P.No.9993 of 1996 and submitted that the order impugned in the present writ petition has been passed by strictly following the directions given by this Court in the earlier writ petition.
8. The learned counsel further pointed out that this Court in the earlier writ petition held that even the only ground that was available for the Corporation i.e., the minor punishment of stoppage of increment for two years was later on set aside and therefore there is absolutely no ground at all for compulsorily retiring the petitioner. Therefore, according to him even though contempt has not been made, still the impugned order is liable to be set aside, as the same has been passed in total violation of the earlier order passed by this Court. In support of his submission, he relied on the following judgments:
1.1984 (Supp) SCC 221 (Baldev Raj, Ex-Constable vs. State of Punjab and others) 2.1999 (4) SCC 235 (Rajat Baran Roy and others vs. State of West Bengal and others) and 3.2005 (9) SCC 748 (Pritam Singh vs. Union of India and others)
9. Per contra, while supporting the order of compulsory retirement passed against the petitioner, the learned counsel for the respondents relied on the following judgments:
1.1970 SC 284 (Union of India vs. Col.J.N.Sinha and another) 2.1970 SC 514 (R.L.Butail vs. Union of India and others) 3.1993 (2) LLJ 866 (Post & Telegraph Board and others vs. C.S.N.Murthy ) 4.1992 (2) SCC 299 (Baikuntha Nath Das and another vs. Chief District Medical Officer, Baripada and another) 5.2009 (5) SCC 732 (National Aviation Company of India Limited vs. S.M.K.Khan) 6.2010 (10) SCC 693 (Pyare Mohan Lal vs. State of Jharkhand and others)
10. The facts are not in dispute. By the order dated 02.07.1996, the petitioner was to compulsorily retire from the post of Deputy General Manager and the said order was passed in the interest of the public and also in exercise of the powers conferred by Regulation 22(2) of the Food Corporation of India (Staff) Regulations, 1971. This was challenged by the petitioner in W.P.No.9993 of 1996 and the said writ petition was disposed off by this Court on 22.10.2003. In the order dated 22.10.2003, the learned Judge held as follows:
"17. In view of the above factual position, it must be construed that the petitioner was compulsorily retired only on the ground that he has caused loss to the Corporation for which an enquiry was conducted and was imposed penalty of stoppage of increment for two years. Though an argument was advanced that an isolated instance of punishment cannot be a ground, I am not inclined to go into that question for the simple reason, that the said punishment also was subsequently set aside by the appellate authority. Since the only ground that was available for the respondent, namely the minor penalty of stoppage of increment for two years, is no more in force as on today and no other past records requiring the petitioner to be compulsorily retired were produced before this Court, it would be proper to direct the matter to the Chairman for re-consideration. In this regard, my attention was also drawn on 10.07.1996, though prior to the order of the appellate authority.
18. In this view of the matter, the writ petition is disposed of with the above findings directing the petitioner to make a detailed representation to the Chairman of the respondent, Food Corporation of India within a period of 15 days from the date of receipt of a copy of this order. The petitioner is also at liberty to bring to the notice of the Chairman as to the subsequent order of the appellate authority in setting aside the only punishment of stoppage of increment imposed on the petitioner subsequent to the order of compulsory retirement. In the event such representation is made as directed, the Chairman of the respondent Corporation is directed to consider the same on merits and duly taking into consideration of the fact that the only punishment, which was relied upon in the impugned order of the compulsory retirement is not in force as on today. Such order should be passed within a period of six months from the date of receipt of a copy of representation from the petitioner. The petitioner is also directed to enclose the copy of this order along with the representation. No costs.
11. From the above judgment, it is very clear that even before the learned Judge in the previous writ petition, no records were produced justifying the action of retiring the petitioner compulsorily. Therefore, the learned Judge felt that the only ground that could be sustained for passing the previous impugned order was against the punishment suffered by the petitioner. Even the minor punishment suffered by the petitioner was later on set aside by the authority, the learned Judge directed the petitioner to submit a representation to the Chairman of the Corporation and the Chairman of the Corporation was directed to consider the representation on merits and also duly taking into consideration of the fact that the only punishment which was relied on in the impugned order of compulsory retirement was not in force.
12. The petitioner submitted a representation as per the orders of this Court dated 22.10.2003 and by the proceedings impugned in the petition dated 02.04.2004, the Chairman passed the order agreeing with the conclusion of the Committee and rejecting the appeal submitted by the petitioner. Aggrieved by the order dated 02.04.2004, the petitioner filed a contempt petition in Cont.P.No.9654 of 2004 before the very same learned Judge who disposed of the W.P.No.9993 of 1996. The learned Judge was satisfied that by the subsequent order dated 02.04.2004, the direction issued by the same Judge in that writ petition was complied with and therefore, no contempt was committed by them. While dismissing the contempt petition, the learned Judge observed that the dismissal of the writ petition shall not stand in the way of the writ petitioner to question the said order dated 02.04.2004 on al available grounds. Thereafter, this writ petition has been filed assailing the order dated 02.04.2004.
13. A perusal of the order dated 02.04.2004 shows that the Committee examined the relevant records and found that it cannot be presumed that the decision of the Review Committee was based on any penalty order. It was only after deliberations and assessment of the performance of the officer, taking into account the prescribed guidelines that the Committee arrived at the conclusion that the petitioner is not fit to continue in the service of Corporation and decided to retire him prematuredly in the impugned order, it was further stated that extent of a penalty order against the officer had no bearing on the decision of the Review Committee as the review was done after two years of issuance of the subject penalty order. The sum and substance of the impugned order is that after careful examination of the representations and all the related records of the case, the Committee after due deliberations again reached at a conclusion that there is no merit in the contentions made by the writ petitioner that calls for a review of the decision of the Review Committee. The Chairman of the Corporation concurred with the conclusion of the Committee and thus rejected the appeal.
14. From the impugned order, now it is very clear that the petitioner was retired compulsorily not on the ground of suffering any penalty, but, on the ground that the petitioner was not fit to continue in the services of the Corporation. For arriving at this subjective satisfaction, it was stated in the impugned proceedings that the Committee reached at this conclusion only after examining all the related records of the case carefully.
15. If the respondents contend that the petitioner has been retired compulsorily, as the petitioner is not fit to continue in the services of the Corporation, then, it is needless to mention here that the respondent should produce relevant records before this Hon'ble Court to justify the subjective satisfaction that has been arrived at by the Committee to come to the conclusion that the petitioner is not fit. If it is not done and if it is done and the records were otherwise, then, certainly this Court can interfere with the order passed as not producing the records or if produced, the records showing otherwise is certainly a ground which could be pressed into service to assail the order of compulsory retirement.
16. When the learned counsel for the Corporation was directed by this Court to produce the relevant records and time was also granted to do so, the learned counsel for the Corporation was not in a position to produce the records and thus, the facts remained that the relevant records which had been gone into by the Committee to have subjective satisfaction were not at all produced before this Court.
17. If that being so, in the absence of any other adverse interpretation, the impugned order passed by the respondents cannot be sustained and the same has been passed arbitrarily and therefore, this court can certainly interfere with the same.
18. Now, let me consider the decisions relied on by both the learned counsel in support of their contentions.
19. In 1984 (Supp) SCC 221 (cited supra), the Hon'ble Supreme Court observed as follows:
"7. Mr. S.K. Bagga, learned Counsel for the respondents urged that the appellant was compulsorily retired in public interest. Public interest is an unruly horse and once it is alleged that the order was a device to circumvent the decision of this Court, it was obligatory upon the respondents to explain why it became necessary to retire the appellant in public Interest. It is true that dead wood has to be weeded out but that itself should not become a cloak to wreak vengeance. The officer who passed the order of compulsory retirement has not filed his counter-affidavit explaining the circumstances in which he considered it in public interest to compulsorily retire the appellant. Mr. S.S. Bains, who has filed the counter-affidavit claims to have no knowledge of the circumstances which necessitated compulsory retirement of the appellant. It is in this background and keeping in view the fact that while the appellant was reinstated on February 11, 1980 in the forenoon, on the same day in the afternoon he was compulsorily retired from service. In effect the decision to reinstate was taken simultaneously with the decision to retire him. It is in the backdrop of these facts which left us agitated that we called upon the respondents to disclose the file in which administrative decision was taken. It may be mentioned that no privilege is claimed. The file is not shown on the specious plea that no such file is maintained. It is conceded in para 5 of the counter affidavit that no annual confidential reports are maintained in the case of constables. This left us completely guessing as to what must have weighed with the competent authority to pass the impugned order of retirement which is a bald order merely reciting the words of the relevant rule. The order of compulsory retirement affects the livelihood of the person in whose respect the order is made and it cannot be left to the guess work to decide what prompted the making of such an order. We are disinclined to accept the submission that no file was maintained. In the absence of any record and the annual confidential reports, it must be confessed that there was no material before the competent authority to pass the impugned order. When in view of the judgment of this Court, it became obligatory to reinstate the appellant in service, the power to order compulsory retirement was exercized not in public interest but to make a pretence of reinstatement and to get rid of the appellant. The High Court, in our opinion, was clearly in error in dismissing such a petition in limine. Accordingly, this appeal succeeds and is allowed and the order of compulsorily retiring the appellant from service dated February 11, 1980 is quashed and set aside. If the appellant has not reached the age of superannuation, he must be reinstated in service. If he had reached the age of superannuation, he should be paid the salary, wages and other terminal benefits for the period February 1, 1980 till the date of his superannuation. The respondents shall pay the costs of the appellant quantified at Rs. 1,000/-."
20. In 1999 (4) SCC 235 (cited supra), the Hon'ble Supreme Court observed as under:
"15. We will now examine the contention of the respondents that the impugned orders can be independently justified in view of the power vested in them by virtue of Rule 75(aa) of the West Bengal Service Rules, Part- I. The said Rule reads thus :
"Notwithstanding anything contained in this Rule the appointing authority shall, if it is of opinion that it is in the public interest so to do, have the absolute right to retire a government employee by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice -
(i) If he is in Group-A or Group-B (erstwhile gazetted) service of post and had entered government service before attaining the age of 35 years, if he has attained the age of 50 years and
(ii) In all other cases after he has attained the age of 55 years."
16. A perusal of this Rule shows that this Rule can be invoked for the purpose of retiring a Government servant in "public interest" on satisfying the conditions mentioned in sub-clauses (1) and (2) of that Rule. A careful perusal of the impugned orders nowhere shows that the said orders are being issued in "public interest" which is a condition precedent for invoking this Rule. Nor does it advert anywhere in the impugned orders in regard to the conditions specified in sub-paras (1) and (2) of the said Rule. If we have to examine the impugned orders in the light of this Rule then the same has to be held to be bad in law for non-application of mind and want of material particulars which are mandatory for invoking the said Rule. Therefore, the argument of the respondents seeking to justify the impugned orders based on Rule 75(aa) of the said Rules also has to be rejected."
21. It is pointed out by the learned counsel for the petitioner that Rule 75(aa) of the Bengal Services Rule Part-I is similar and identical to Regulation 22(2) of FCI (Staff) Regulations, 1971.
22. In 2005 (9) SCC 748 (cited supra), the Hon'ble Supreme Court observed as follows:
"15. We are of the opinion that the instant case is a glaring example of abuse of discretionary power of the Disciplinary Authority as the punishment of compulsory retirement imposed on the appellant, who has put in 31 years of long service, only because he has supplied the details of absentation to one of the employees, which was neither confidential nor a privileged document. In any event, the appellant bonafide believed that he was right in furnishing the details which the employee had right to ask for. In our opinion, this is a fit case where the High Court and the Tribunal should have held that the punishment imposed is vitiated on account of the disproportionality.
16. This Court in the case of Union of India and Anr. vs. G. Ganayutham, (1997) 7 SCC 463 while examining the scope of judicial review held that "reasonableness", "rationality" and "proportionality" are the grounds on the basis of which judicial review of the administrative order can be undertaken. Considering the facts extracted herein before, we find that the exercise of power by the Respondent falls in the category of arbitrary exercise of power.
17. A perusal of the compulsory retirement order would reveal that it was not stated that the action was initiated in public interest.
18. This Court also has held in the case of M.S. Bindra vs. Union of India & Ors., (1998) 7 SCC 310 that judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or malafide or if it is based on no evidence.
19. This Court in the case of State of Gujarat and Anr. vs. Suryakant Chunilal Shah (1999) 1 SCC 529 held that in a case of compulsory retirement public interest is the primary consideration.
20. In the instant case, no material on record was placed before the disciplinary authority, appellate authority, revisional authority, Tribunal and before the High Court to reasonably form an opinion that compulsory retirement was in public interest. The case on hand is also not a case of doubtful integrity. The impugned action of compulsorily retiring the appellant from service can be termed as arbitrary in the sense that no reasonable person could have come to the conclusion that the appellant had outlived his utility as a member of railway service and had become a deadwood which had to be chopped off."
23. In 1970 (2) LLJ 514 (cited supra), a Five Judges Bench of the Hon'ble Supreme Court held as follows:
"24. As stated earlier, W. P. 1550 of 1967 challenged the validity of the order by which the appellant was compulsorily retired from service with effect from August 15, 1967 when he completed the age of 55 years. The order was admittedly passed under r. 56(j) of the Fundamental Rules, as amended by Fundamental (Sixth Amendment) Rules, 1965. Clause (a) of that rule provides that, except as otherwise provided in the rule, every Government servant shall retire on the day he attains the age of 58 years. Clause (d), however, authorises the Government to grant extension of service up to the age of 60 years provided such extension is in public interest and the grounds therefor are recorded in writing. Clause (j), with which we are presently concerned, reads as follows :
"Notwithstanding anything contained in this Rule, the appropriate authority shall, if it is of the opinion that it is in the public interest to do so have the absolute right to retire any Government servant after he has attained the age of fifty-five years by giving him notice of not less than three months in writing :"
The Office Memorandum dated July 10, 1966 issued by the Ministry of Home Affairs provides (1) that six months before a Government servant attains the age of 55 years, his case should be reviewed and a decision taken whether or not his retention in service beyond the age of 55 years is in public interest, and (2) that once a decision is taken to retain him beyond the age of 55 years, such Government servant would continue in service automatically till he attains the age of compulsory retirement. i.e., 58 years of age. It further provides that if the appropriate authority considers that retention of a Government servant beyond the age of 55 years is not in public interest, such authority must take necessary action to serve three months notice in terms of cl. (j) of F. R. 56. That the requisite notice in terms of cl. (j) of F.R. 56 was served on the appellant is not in dispute. In Union of India v. Col. J. N. Sinha(1970-II, LLJ 284) this Court stated that F. R. 56(j) in express terms confers on the appropriate authority an absolute right to retire a Government servant on his attaining the age of 55 years if such authority is of the opinion that it is in public interest so to do.
25. The decision further states:
"If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an agrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision."
26. The appellant relied on Moti Ram Deka v. General Manager, N.E.F. Railways(1964) 5 S.C.R. 587, where rules 148 (3) and 149 (3) of the Indian Railway Establishment Code were held to contravene Art. 311 (2), and therefore, invalid. That decision cannot apply to the present case as the rules there in question dealt with the right to terminate service on notice of a prescribed period. The Court there held that a rule cannot confer on the Railway administration power to terminate service while at the same time laying down the age of superannuation so as to be in contravention of the provisions of Art. 311(2). Similarly, in Gurdev Singh Sidhu v. Punjab(1964) 7 S.C.R 587, a rule conferring an absolute right to retire a Government servant after he had completed ten years of qualifying service, though providing that such power shall not be exercised except when it is in public interest, was struck down as contravening Art. 311(2). The Court, however, held that there were two valid exceptions to the protection afforded by Art. 311 (2). These were (1) where a permanent public servant was asked to retire on the ground that he had reached the age of superannuation which was reasonably fixed, and (2) that he was compulsorily retired under the rules which prescribed the normal age of superannuation and provided a reasonably long period of qualifying service after which alone compulsory retirement could be ordered. The first would not amount to dismissal or removal from service within Art. 311(2) and the second would be justified by the view taken by this Court in a long series of decisions. In T. C. Shivacharan Singh v. Mysore, AIR (1965) S.C. 89, rule 285 of the Mysore Civil Services Rules, 1958 conferring power on Government to retire compulsorily a Government servant in public interest on his completing twenty-five years of qualifying service or attaining fifty years of age, though the age of normal superannuation under r. 95 (a) was fixed at fifty-five years, was upheld on the ground that the rule laid down a reasonably long period of qualifying service. (See Takhatrav Shivdatrai Mankad v. Gujarat, (1969) 2 SCC 120, particularly the observations at p. 123).
27. Since the question of validity of such a rule has thus been concluded, such a challenge is no longer available to the appellant.
28. The affidavit in reply by the respondents, dated February 6, 1968, in clear terms avers that before passing the impugned order the appropriate authority, in accordance with the said Office Memorandum of the Ministry of Home Affairs, reviewed the case of the appellant and came to the conclusion that it was in public interest that he should be compulsorily retired on his attaining fifty-five years of age. The affidavit also avers that the appropriate authority had "carefully considered all relevant factors relating to the case of the petitioner (the appellant) and came to the definite opinion that it was not in the public interest to retain the petitioner in service beyond the date on which he attained the age of fifty-five years." In their reply-affidavit, dated July, 10, 1967, in W.P. 1550 of 1967 it is further stated that before the said decision was reached, the appellant's entire service record was considered including his confidential reports, that where such reports were adverse they had been earlier comnunicated to him from time to time, that the appellant had made representations against them to the competent authority and even personal interviews before superior officers had been granted to him to vindicate his point of view. It was after all this had been done and the confidential reports had remained unaltered that the appropriate authority considered his entire record of service and then reached the conclusion that F. R. 56(j) should be resorted to. It may well be that in spite of the work of the appellant being satisfactory, as he claimed it was, there may have been other relevant factors, such as the history of the appellants' entire service and confidential reports throughout the period of his service, upon which the appropriate authority may still decide to order appellant's retirement under F. R. 56(j). Further, there is nothing to show that the impugned order was not in public interest. As aforesaid, Col J. N. Sinha's case(1970-II LLJ 284), clearly lays down that the question as to the correctness of such a decision by the appropriate authority, provided it is bona fide, would not be gone into by this Court. We have already negatived the plea of mala fides raised by the appellant. Consequently, a plea of lack of bona fides can hardly be entertained. Likewise, the plea that the appropriate authority had not applied its mind must also fail in view of the clear averments made in that regard in the affidavits cited earlier, no reason having been adequately shown to discard those statements as untrue or otherwise unbelievable. That being the position, we are constrained to come to the conclusion that the appellant has-failed to make out his case in any one of his three writ petitions."
24. In AIR 1970 (2) LLJ 284 (cited supra), the Hon'ble Supreme Court observed as under:
"7. The validity of Fundamental Rule 56(j) was not questioned before the High Court nor before us. Its validity is not open to question in view of the decision of this Court in T. G. Shivacharana Singh and Ors. v. State of Mysore AIR (1965) SC 280.
8. Fundamental Rule 56(j) in terms does not require that any opportunity should be given to the concerned government servant 'to show cause against his compulsory retirement. A government servant serving under the Union of India holds his office at the pleasure of the President as provided in Art. 310 of the Constitution. But this "Pleasure" doctrine is subject to the rules or law made under Art. 309 as well as to the conditions prescribed under Art. 311. Rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights. As observed by this Court in Kraipak and Ors. v. Union of ' India AIR (1970) SC 150 "the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it." It is sure that if a statutory provision can be read consistently with the principles of natural justice, the courts should do so because it must be presumed that the legislatures and the statutory authorities intend to act in accordance with the principles of natural justice. But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice. Whether the exercise of a power concerned should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power.
9. Now coming to the express words of Fundamental Rule 56(j), it says that the appropriate authority has the absolute right to retire a government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by the government on the ground of mala fide. But that ground has failed. The High Court did not accept that plea. The same was not pressed before us. The impugned order was not attacked on the ground that the required opinion was not formed or that the opinion formed was an arbitrary one. One of the conditions of the 1st respondent's service is that the government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no civil consequences. The aforementioned rule 56(j) is not intended for taking any penal action against the government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Art. 310 of the Constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases, the government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in government organizations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual government servant and the interests of the public. While a minimum service is guaranteed to the government servant, the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest.
10. It is true that a compulsory retirement is bound to have some adverse effect on the government servant who is compulsorily retired but then, as the rule provides, that such retirements can be made only after the officer attains the prescribed age. Further a compulsorily retired government servant does not lose any of the benefits earned by him till the date of his retirement. Three months' notice is provided so as to enable him to find out other suitable employment.
11. In our opinion the High Court erred in thinking that the compulsory retirement involves civil consequences. Such a retirement does not take away any of the rights that have accrued to the government servant because of his past service. It cannot be said that if the retiring age of all or a section of the government servants is fixed at 50 years, the same would involve civil consequences. Under the existing system there is no uniform retirement age for all government servants. The retirement age is fixed not merely on the basis of the interest of the government servant but also depending on the requirements of the society.
13. In Binapani Dei's case (supra), Dr. Binapani Dei's date of birth was refixed by the government without giving her proper opportunity to show that the enquiry officer's report was not correct. It is under those circumstances this Court held that the order refixing the date of birth was vitiated for failure to comply with the principles of natural justice. Therein the impugned order took away some of the existing rights of the petitioner.
14. In Kraipak's case (supra), a committee consisting of Chief Conservator of Forests, Kashmir and others was appointed to recommend names of the officers from Kashmir Forest Service for being selected for the Indian, Forest Service. The Chief Conservator of Forests, Kashmir was one of the candidates for selection. Further it was established therein that some of the officers who competed with him had earlier challenged his seniority and consequently his right to be the Chief Conservator and that dispute was pending. Under those circumstances this Court held that there was contravention of the principles of natural justice."
25. In AIR 1992 (2) SCC 299 (cited supra), the Hon'ble Supreme Court held as follows:
"30. On the above premises, it follows, in our respectful opinion that the view taken in J.N. Sinha is the correct one viz., principles of natural justice are not attracted in a case of compulsory retirement under F.R. 56(j) or a rule corresponding to it. In this context, we may point out a practical difficulty arising from the simultaneous operation of two rules enunciated in Brij Mohan Singh Chopra. On one hand, it is stated that only the entries of last ten years should be seen and on the other hand, it is stated that if there are any adverse remarks therein, they must not only be communicated but the representations made against them should be considered and disposed of before they can be taken into consideration. Where do we draw the line in the matter of disposal of representation? Does it mean, disposal by the appropriate authority alone or does it include appeal as well? Even if the appeal is dismissed, the government servant may file a revision or make a representation to a still higher authority. He may also approach a court or Tribunal for expunging those remarks. Should the government wait until all these stages are over? All that would naturally take a long time by which time, these reports would also have become stale. A government servant so minded can adopt one or the other proceeding to keep the matter alive. This is an additional reason for holding that the principle of M.E. Reddy should be preferred over Brij Mohan Singh Chopra and Baidyanath Mahapatra, on the question of taking into consideration uncommunicated adverse remarks.
33. At this stage, we think it appropriate to append a note of clarification. What is normally required to be communicated is adverse remarks - not every remark, comment or observation made in the confidential rolls. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56(j) or a Rule corresponding to it. The object and purposes for which this power is to be exercised are well stated in J.N. Sinha and other decisions referred supra.
34. The following principles emerge from the above discussion:
(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be perverse order.
(iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interfere.
Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above.
35. Before parting with the case, we must refer to an argument urged by Sri R.K. Garg. He stressed what is called, the new concept of Article 14 as adumbrated in Maneka Gandhi and submitted on that basis that any and every arbitrary action is open to judicial scrutiny. The general principle evolved in the said decision is not in issue here. We are concerned mainly with the question whether a facet of principle of natural justice - audi alteram partem - is attracted in the case of compulsory retirement. In other words, the question is whether acting upon undisclosed material is a ground for quashing the order of compulsory retirement. Since we have held that the nature of the function is not quasi-judicial in nature and because the action has to be taken on the subjective satisfaction of the Government, there is no room for importing the said facet of natural justice in such a case, more particularly when an order of compulsory retirement is not a punishment nor does it involve any stigma."
26. In 2009 (5) SCC 732 (cited supra), the Hon'ble Supreme Court held as follows:
"23. The learned counsel for the respondent next submitted that recourse to "compulsory retirement" should be only in "public interest"; and that in this case, as neither the regulations nor the order of compulsory retirement referred to public interest, the compulsory retirement was vitiated. This contention has no merit. "Public interest" is used in the context of compulsory retirement of government servants while considering service under the state. The concept of public interest would get replaced by "institutional interest" or "utility to the employer" where the employer is a statutory authority or a government company and not the government. When the performance of an employee is inefficient or his service is unsatisfactory, it is prejudicial or detrimental to the interest of the institution and is of no utility to the employer. Therefore compulsory retirement can be resorted to (on a review of the service on completion of specified years of service or reaching a specified age) in terms of relevant rules or regulations, where retention is not in the interests of the institution or of utility to the employer. It is however not necessary to use the words "not in the interests of the institution" or "service not of utility to the employer" in the order of compulsory retirement as the Regulation provides that no reason need be assigned.
24. The respondent next drew our attention to the finding of the High Court that there was some discrepancy in regard to the number of days of unauthorized absence during the period of one year after 55 years and such unauthorized absence could not be a ground for compulsory retirement without an enquiry. It is true that the High Court has referred to the evidence of MW-1 and the entries in the muster rolls, to point out the discrepancy. MW1 had stated before the tribunal that the period of unauthorized absence was 27 days whereas the entries in the muster rolls showed such absence was 32 days and that there was also an admission that out of the said 32 days, 6 days was availed as sick leave. But that cannot be a ground to conclude that the order of compulsory retirement was bad.
25. The Tribunal and the High Court were not examining "unauthorized absence" as a misconduct which was subject matter of a charge. When the show cause notice dated 27.5.1999 referred to the absence of 20 days during the period of one year beyond 55 years, the respondent did not deny the same in his reply dated 14.6.1999. On the other hand, he admitted such absence and tried to explain it as being on account of advanced age and ill health of himself and wife. The fact that the unauthorized absence was more than 20 days during a period of one year was never disputed.
26. The discrepancy in the oral evidence of MW1 and the muster rolls in regard to the total number of unauthorized absence, even if true, was not material, as the respondent was not being punished for any specific unauthorized absence. The unauthorized absence was only the background material to reach the decision that respondent's service was unsatisfactory.
27. The High Court also erred in treating the show cause notice dated 27.5.1999 as a charge memo and finding fault with it on the ground that it did not contain necessary particulars in regard to the charge of unauthorized absence, and consequently holding that in the absence of any inquiry, principles of natural justice were violated. The letter dated 27.5.1999 was not a charge memo but only a notice giving opportunity to the employee before compulsorily retiring him under Regulation 12. In fact even without such a notice he could have been compulsorily retired."
27. In 2010 (10) SCC 693 (cited supra), the Hon'ble Supreme Court held as follows:
"29. The law requires the Authority to consider the "entire service record" of the employee while assessing whether he can be given compulsory retirement irrespective of the fact that the adverse entries had not been communicated to him and the officer had been promoted earlier in spite of those adverse entries. More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement. The case of a Judicial Officer is required to be examined, treating him to be differently from other wings of the society, as he is serving the State in a different capacity. The case of a Judicial Officer is considered by a Committee of Judges of the High Court duly constituted by Hon'ble the Chief Justice and then the report of the Committee is placed before the Full Court. A decision is taken by the Full Court after due deliberation on the matter. Therefore, there is hardly any chance to make the allegations of non- application of mind or mala fides.
30. Be that as it may, the service record of the petitioner revealed that he had not been promoted in the regular cadre of the District Judge as he was not found fit for the same because of the adverse entries. The Petitioner was promoted as Additional District Judge on ad hoc basis and posted in the Fast Track Court. It was definitely not a promotion on merit (selection). The High Court had objectively decided to recommend his compulsory retirement and the State Authorities acted accordingly. No fault can be found with the decision making process or with the decision."
28. If the above judgments are perused carefully, an order retiring a person compulsorily can be interfered with by this Hon'ble Court, if the order is passed on no records i.e., based on no evidence and if the same has been passed arbitrarily.
29. In the present case, in the earlier writ petition filed by the petitioner herein itself, the learned Judge who disposed off that petition clearly observed that no records were produced by the Corporation before the Court at that time. Therefore, in the absence of any records, the learned Single Judge found that the only ground that could be maintained for passing the order of compulsory retirement is the punishment suffered by the petitioner which was set aside later on. Therefore, a direction was given to the petitioner to submit a fresh representation of stating specifically about the subsequent development of setting aside the order of punishment suffered by him. Similarly, a direction was given to the Chairman to pass orders on merits on his representation by taking into consideration of the fact the only punishment which was relied on in the impugned order of compulsory retirement was not in force as on that date. When such a representation was submitted by the petitioner, the same was rejected on the ground that the earlier order was not passed on the basis of the penalty order but it was only after the deliberations and assessment of the performance of the officer taking into account the prescribed guidelines that the Committee arrived at the conclusion that the petitioner is not fit to continue in the services of the Corporation. Therefore, the order of compulsory retirement was passed, not on the ground that the petitioner is of doubtful integrity but on the ground that he is not fit to continue in the services of the Corporation. This subjective satisfaction of the Committee has been reached after examination of all the records of the case. If that being so, a duty is cast upon the Corporation to produce those related records, on the basis of which, the subjective satisfaction was arrived at holding the petitioner unfit to continue in the services of the Corporation. When a person challenges an order retiring him compulsorily, then, the onus is on the respondent to prove that he has been retired compulsorily not arbitrarily but on the basis of subjective satisfaction that has been arrived at after going through the relevant records. But, in this case, the respondent miserably failed to discharge the onus i.e., speaking on their shoulders heavily and therefore, in the absence of any records, it is to be considered that there is no evidence at all for the respondents to come to the subjective satisfaction that the petitioner is unfit to hold the post. Therefore, I have no hesitation in holding that the order impugned in this writ petition is not sustainable and the same is liable to set aside and the writ petition is allowed as prayed for.
30. In the result, the writ petition is allowed. No cost. Consequently, connected miscellaneous petition is closed.
cse To
1.Food Corporation of India Rep. By its Chairman/Managing Director, No.16-20, Barakhampalane, New Delhi 110 001.
2.The Zonal Manager (South), Food Corporation of India, Zonal Office, Haddows Road Chennai