Gauhati High Court
Page No.# 1/29 vs The Food Corporation Of India And 3 Ors on 25 April, 2025
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/29
GAHC010207192023
2025:GAU-AS:5057
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5356/2023
GANESH PRASAD YADAV
S/O- D.P DHANGAR,
R/O- H.NO- 1277/1 B JHANDA CHOWK, JAIPRAKASH NAGAR, ADHAARTAL,
JABALPUR, MADHYA PRADESH-482004
VERSUS
THE FOOD CORPORATION OF INDIA AND 3 ORS
REP. BY ITS CHAIRMAN
16-20 BARAKHAMBA LANE, NEW DELHI- 110001.
2:THE CHAIRMAN
FOOD CORPORATION OF INDIA
16-20 BARAKHAMBA LANE
NEW DELHI- 110001.
3:THE MANAGING DIRECTOR
FOOD CORPORATION OF INDIA
16-20 BARAKHAMBA LANE
NEW DELHI- 110001.
4:THE EXECUTIVE DIRECTOR (NE)
FOOD CORPORATION OF INDIA
ZONAL OFFICE (NE)
GLP BUILDING
ULUBARI
G.S ROAD
GUWAHATI-07
ASSA
Advocate for the Petitioner : MR. K P PATHAK, MR ARINDAM BARUAH,MR. B DAS,MR B
CHOUDHURY
Page No.# 2/29
Advocate for the Respondent : SC, F C I,
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA For the petitioner : Mr. K.P. Pathak, Senior Advocate.
: Mr. B. Choudhury, Advocate.
For the respondents : Mr. K.N. Choudhury, Senior Advocate.
: Mr. B.K. Singh, Advocate.
Date of hearing : 20.06.2024, 25.06.2024, 24.04.2025.
Date of judgment : 25.04.2025.
JUDGMENT AND ORDER
(CAV)
Heard Mr. K.P. Pathak, senior advocate, assisted by Mr. B. Choudhury, learned counsel for the petitioner. Also heard Mr. K.N. Choudhury, learned senior advocate, assisted by Mr. B.K. Singh, learned counsel for the respondents.
2) By filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for (a) quashing of the impugned order dated 12.06.2023, passed by the Managing Director, Food Corporation of India (respondent no.3), thereby compulsorily retiring the petitioner from service; (b) to forbear from giving effect to the said order dated 12.06.2023; (c) for quashing the order dated 14.08.2023, passed by the respondent no.3, thereby rejecting the representation dated 21.06.2023, submitted by the petitioner; (d) to forbear from giving effect to the said order dated 14.08.2023; and (e) to direct the respondents to reinstate the petitioner in service and to regularize the period between his compulsory retirement and reinstatement as dies non and to Page No.# 3/29 treat the said period as spent on duty for all purposes.
Case of the petitioner:
3) The case of the petitioner, in brief, in the writ petition is that the petitioner was appointed in Food Corporation of India (FCI for short) as Deputy Manager (General) on 10.04.2000. In course of his service, he was transferred from time to time and he was also promoted from time to time.
4) While serving in FCI, Regional Office, Bhopal, a discipline a disciplinary proceeding was drawn up against the petitioner in respect of certain irregularities while he was serving in Borivalli, Maharashtra and by order dated 25.04.2017, he was given punishment of reduction in pay scale by 2 (two) stages for a period of one year. Against the said order, the petitioner had filed an appeal and the Chairman, FCI (Respondent no.2), by an order dated 27.06.2019, his punishment was scaled down to pay scale being reduced by 1 (one) stage for a period of one year without cumulative effect.
5) Thereafter, by an order dated 06.11.2019, the petitioner was promoted to the post of General Manager (General) and was posted at Zonal Office (West), Mumbai and then he was posted at Zonal Office, Guwahati as General Manager (General) and was also given additional charge of the General Manager (R), FCI, Regional Office, Arunachal Pradesh. While serving as such, the petitioner was served with the impugned order dated 12.06.2023, thereby compulsorily retiring him from service by invoking Regulation 22(2) of the FCI Staff Regulations, 1971 (hereinafter referred to as "FCI Staff Regulation" for short) (as amended vide notification dated 02.06.2021).
6) The petitioner then submitted an appeal dated 21.06.2023 to the Appellate Authority to withdraw the order dated 12.06.2023 and to reinstate Page No.# 4/29 him. However, the respondent no.3, by an order dated 14.08.2023, rejected the petitioner's said appeal. Hence, this writ petition.
Case of the respondents:
7) The stand of the respondents in their affidavit-in-opposition is that the service conditions of the FCI employees are governed by the FCI Staff Regulations, which has been framed under the provisions of section 45 of the Food Corporations Act, 1964. Moreover, with previous sanction from the Central Government, circulars, etc. are also issued from time to time. The provisions of Regulation 22(2) provides for premature retirement of Category-I and II employees after attaining the age of 50 years after giving him a notice of not less than three months in writing or three months' pay and allowances in lieu of such notice, subject to entering into service before attaining the age of 35 years and after he has attained the age of 50 years, and in any other case, after he has attained the age of 55 years.
8) The Review Committee conducts periodical review of the employees of FCI under Regulation 22(2) of the FCI Staff Regulation. The matter relating to the petitioner was reviewed by the Review Committee by following the guidelines contained under the said Regulation 22(2) of FCI Staff Regulation, Department of Personnel and Training (DoPT for short) OM dated 28.08.2020 and paragraph-10 of the FCI Circular dated 09.07.2021 and thereupon the Review Committee made its recommendation to the appropriate authority after considering the entire service record of the petitioner, including memos, show-cause notices, charge-sheets, penalties, Annual Performance Appraisal Report (APAR's for short) grading, remarks about integrity and general reputation of the petitioner in the organization. Accordingly, the impugned order dated 12.06.2021 was issued.
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9) The representation dated 21.06.2021, was forwarded to the Representation Committee, which observed that on 6 (six) occasions, the petitioner was issued memos/ show-cause notices/ charge-sheets indicating various allegations of misconduct, out of which two charge-sheets were under major penalty clause of Regulation 58 of the FCI Staff Regulation. Moreover, as per the petitioner's APAR's assessment prior to 2009, he had earned grading of fair/ good and his conduct and reputation was not good. Accordingly, the finding of the Review Committee was held to be good by the Representation Committee. It has been stated that the two orders dated 12.06.2023 and 14.08.2023, were passed by Managing Director of FCI, who is the appointing authority and that in the order dated 14.08.2023, it has been mentioned that the representation of the petitioner was examined by the Representation Committee.
10) According to the respondents, the vigilance and administrative profile of the petitioner reflects the following position: -
i. Complaint was made by staff of Satna Division alleging corruption by petitioner and consequently vide order dated 24.08.2009, the petitioner was transferred to Maharashtra Division.
ii. Charge-sheet dated 21.10.2010 was issued under major penalty clause of the FCI Staff Regulation for negligence towards his duties as Area Manager and failure to monitor Depot operation efficiently and failure to keep control over subordinate staff.
iii. E-mail dated 05.05.2011 was sent by the General Manager (Karnataka) to the Executive Director (South Zone), to transfer the petitioner out of Karnataka, pointing out serious irregularities; performance not upto the mark; serious allegations about doubtful Page No.# 6/29 integrity. Based on inputs, the petitioner was transferred out from Karnataka Region to the Regional Office, Tamil Nadu. It was also observed that the petitioner had not submitted his APAR for the said period to his controlling officer and only part APAR of the year was available in the record.
iv. Memorandum dated 08.08.2011 was issued to the petitioner by the Central Bureau of Investigation, who had warned the petitioner after investigating the case of irregularities in Satna Mandi during Marketing Season 2009-10, amongst others, regarding non- maintenance of records and loss of food grain.
v. The petitioner was served with a show-cause notice dated 14.03.2012, for alleged lapses for not lodging FIR against the HTC of MPSWC and the truck driver. Accordingly, a warning dated 05/06.01.2012, was issued to the petitioner, who was then posted as Area Manager, Sagar to be more careful in future.
vi. Memorandum dated 14.03.2012, was issued to the petitioner, who was then posted as DGM (Region), Tamil Nadu, for explaining the reasons for not attending the Zonal Office (South) in spite of being available at Regional Office for discussing clarifications sought for by the FCI HQ on SLC proposals in the meeting held on 27.12.2011.
vii. Charge-sheet dated 30.09/01.10.2015, was issued to the petitioner, who was then posted as DGM (General), Bhopal, Madhya Pradesh under minor penalty clause for irregularities committed OMSS(D) in Madhya Pradesh. However, all the charges were dropped vide order dated 18.01.2016.
Page No.# 7/29 viii. Charge-sheet dated 03.02.2016, was issued to the petitioner, then posted as Area Manager, Borivali, Maharashtra under major penalty clause for irregularities in labour issues and abnormality in payment of wages in Borivali. Punishment of reduction in pay scale by 2 (two) stages for a period of 1 (one) year was imposed upon the petitioner by providing that he will not earn increment and reduction will have the effect of postponing future increments of his pay. However, on appeal, vide order dated 27.06.2019, the penalty of reduction in time scale of pay was modified by 1 (one) stage for a period of 1 (one) year without cumulative effect.
ix. The APAR grading of the petitioner for the year 2004 was graded as fair and the Reviewing Officer had also denied to accept him fit for promotion as he neither had capability nor does he take interest in completion of the assigned work in time even after issuance of multiple memos and warnings. Nonetheless, his grading was up-graded to good by the Reviewing Authority.
x. Similar comments are available in the APAR for the year 2006.
xi. In the APAR of 2008, the petitioner is reported as a non performer by the Reporting Officer, but he was graded good.
xii. In the APAR of 2009 (December, 2009 to December, 2009), the petitioner was graded as good. However, the accepting authority had remarked that the petitioner was not able to control the operation at Borivali.
xiii. The below benchmark grading awarded to the petitioner was accepted by him.
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xiv. The Committee had gone through all the APARs of the
petitioner, available in the record and observed that it is reflected from the start of his service that the petitioner remained as average performer and many times he was a casual worker with no initiative to work.
xv. The Committee had observed that in the APAR of 2011, the Reviewing Authority was not willing to accept the petitioner in promotion capacity.
11) The FCI Headquarter, vide letter dated 16.01.2023, instructed that it had become imminent to review all the serving officers of Category-I and II, who had completed and/or completing 50 years of age as 30.06.2023. This is projected to be in accordance with Rule 22(2) of the FCI Staff Regulation. Accordingly, the review of 320 Category-I officers was conducted and 21 (twenty one) officers including the petitioner were prematurely retired from service. In this regard, the respondents have placed reliance on paragraph nos. 7 and 10 of the FCI Circular No. EP-01-2021-24 dated 09.07.2021 to justify the premature retirement of the petitioner.
Submissions, in brief, by the learned senior counsel for the petitioner:
12) The learned senior counsel for the petitioner had made his oral submissions, followed by a written note of submission, which has been made a part of the record. It was submitted that before an officer of FCI is prematurely retired, the process has to pass through different committees such as Review Committee, whose recommendation is required to be submitted to the Appointing Authority i.e. Chairman- cum- Managing Director for his consideration and approval. Thereafter, if an officer is compulsorily retired, the aggrieved employee has a right to submit a representation before the Page No.# 9/29 Representation Committee, which would consist of members appointed in accordance with Clause 8-B of the Circular dated 09.11.2022, issued under Regulation-22(2) of the FCI Staff Regulation. It was submitted that there is a third committee under Clause 9 of the said circular, called Internal Committee, which is for assisting the Review Committee. Extensive submissions were made in respect of various clauses of the Circular dated 09.11.2022.
13) It was further submitted that in the year 2019, from the post of Deputy General Manager, the petitioner was promoted to the post of General Manager. Accordingly, as per clause 10(iv) of the Circular dated 09.11.2022, the petitioner could not have been prematurely retired on 12.06.2023, within 5 (five) years of being promoted. However, without considering the said aspect, the representation submitted by the petitioner was rejected on 14.08.2023.
14) It was submitted that as regards the two other grounds available for premature retirement under Clause-10 of the Circular dated 09.11.2022, which relates to allegations that the petitioner was a person of doubtful integrity, lack of fitness and competence, the petitioner had given a gist of remarks appearing in his APAR in his representation dated 21.06.2023. It was submitted that no adverse remarks appearing against the petitioner was communicated to him. It has been submitted that the remarks in the petitioner's APAR have been extracted in paragraph 9 of the writ petition, which has not been specifically denied by the respondents. However, in paragraph 30 of the affidavit-in- opposition filed by the respondents through the Assistant General Manager of FCI, a lowest officer in the grade of officers in FCI, it has been stated that "... it was always observed that the petitioner worked in a lackadaisical manner with lack of devotion and he always tried to shirk the assigned responsibilities in one way or the other." It has been submitted that the Page No.# 10/29 statement made in paragraph 30 of the affidavit-in-opposition is made by an officer who is junior to the petitioner, which is verified to be true to his knowledge and thus, those allegations are not based on any record.
15) It was submitted that it was the pleaded case of the petitioner that as per circular dated 09.07.2022, the performance of the petitioner was reviewed by the Review Committee in the year 2021, on attaining the age of 50 years on 29.01.2021, but then the Review Committee did not recommend to compulsorily retire the petitioner. Thus, the case of the petitioner having been considered by the Review Committee, could not have been taken-up in the year 2023, when there was no change of circumstances occurring after 2021 and it could have been taken-up, only in public interest, and by strictly adhering to Clause 7 of the FCI Circular dated 09.07.2021. Accordingly, it was submitted that the respondents have failed to show any material before the Court that they had exercised visual meticulousness, as envisaged vide the said circular.
16) It has been submitted that the petitioner was not given any opportunity of a personal hearing either before the Review Committee or before the Representation Committee. Accordingly, it is submitted that the principle of natural justice was not complied with.
17) It was submitted that as per Clause 12 of the FCI Circular no.
EP-01-2021-24 dated 09.07.2021 provides that the recommendations of Review Committee will be put up for consideration and approval for the Appointing Authority in those cases, where it has been recommended to retire the corporation employee permanently. In this regard, it is submitted that the paragraph 9-C of the writ petition, the petitioner has stated that the Appointing Authority for Category-1 posts is the Managing Director (respondent no.3) and therefore, assuming that the Review Committee had recommended that he Page No.# 11/29 should be compulsorily retired, then the said recommendation had to be approved by the Appointing Authority. However, the impugned order dated 12.06.2023, does not show that the Managing Director had approved the recommendation of the Review Committee. It was submitted that by not denying the statements made in paragraph 9-Cof the writ petition, the respondents are deemed to have admitted those statements.
18) It was submitted that the entries made in the APAR of the petitioner for his service period of the year 2000 to 2022 was exemplary and unblemished for which he was promoted from the post of Assistant General Manager to the post of Deputy General Manager and thereafter, in the year 2019, to the next higher post of General Manager (General). The performance of the petitioner was reviewed by the Review Committee on 29.10.2021 on attaining age of 50 years, which was as per clause 3.1.(a) of the circular and the Review Committee did not recommend the name of the petitioner for compulsory retirement. It is submitted that the statement in this regard is made in paragraph 9-B of the writ petition has not been specifically denied by the respondents. But, a general allegation of "incompetence" of the petitioner has been made in paragraph 13 of the affidavit-in- opposition, which is sworn by an officer of the cadre of AGM, and thus, lowest cadre of officer rank in FCI, which is made on the basis of his personal knowledge and not borne out of record and therefore, cannot be believed.
19) It is submitted that although in the affidavit-in- opposition, the petitioner is projected to have doubtful integrity, but those allegations are not in consonance with the directions contained in the Office Memorandum no. 21011/27/2015-Estt.(A-II) dated 11.02.2016, issued by the Department of Personnel and Training (DoPT for short), Govt. of India.
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20) It has been submitted that in the case of Baikunth Nath Das & Anr. v. Chief District Medical Officer, Baripada, (1992) (2) SCC 299 , it has been held by the Supreme Court of India that compulsory retirement is not a punishment, but it was further held that the Review Committee constituted for the purpose has to consider the entire record of service before taking a decision in the matter. It was also held that when a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, moreso, if the promotion is based upon merit and not upon seniority.
21) Citing the case of Central Industrial Security Force v. HC (GD) Om Prakash, (2022) 0 Supreme (SC) 113 , it is submitted that the Supreme Court of India had held that the entire service record is to be taking into consideration, which would include ACRs of the period prior to the promotion, though the recent reports would carry their own weight.
22) By referring to the case of State of Gujarat v. Umedbhai M. Patel, (2021) 3 SCC 314, it has been submitted that the Supreme Court of India had deprecated the order of premature retirement, which is passed as a short cut to avoid departmental proceedings and passed as a punitive measure.
23) It is submitted that in the case of Rajasthan State Road Transport Corpn. v. Babu Lal Jangir, (2013) 0 Supreme SC 875 , it has been held by the Supreme Court of India that if the order is passed with non-application of mind or it suffers from arbitrariness, it would be liable to be interfered with. In the said regard, the following case have also been cited, viz., (i) Captain Promod Kumar Bajaj v. Union of India & Anr., 2023 SCC OnLine SC 234 , (ii) Baldev Raj Chadha v. Union of India & Ors. (1980) 4 SCC 321 , (iii) Madhya Pradesh State Cooperating Dairy Federation Ltd. & Anr. v. Rajnish Kumar Jamindar & Ors., (2009) 15 SCC 221, and (iv) State of J&K & Ors. v. Narayan Page No.# 13/29 Dutt, LPA No. 196/2018, decided by High Court of Jammu & Kashmir and Ladakh on 04.08.2023.
24) In summing up, it was further submitted that there are several other Grade-I officer who had suffered penalties and departmental proceedings are also pending against them. However, in the exercise for compulsory retirement, no action was taken against those officers whereas in respect of the petitioner, after he was promoted to the post of General Manager in 2019, no disciplinary proceeding is pending against him. It has been submitted that as a Review Committee report was required to be considered before approval of the Appointing Authority in terms of clause 12 of the hereinbefore referred circular, the impugned order against the petitioner suffers from malice in law and malice in fact. A further note of closing submission has been submitted by the learned senior counsel for the petitioner, which is also made a part of the record.
Submissions, in brief, by the learned senior counsel for the respondents:
25) Per contra, the learned senior counsel for the respondents has referred to the affidavit-in-opposition and sur-rejoinder affidavit filed by the respondents and I has been submitted that the impugned order of compulsory retirement of the petitioner is in accordance with the provisions of Regulation 22(2) of the FCI Staff Regulations, 1971 and it is further submitted that moreover, the FCI has also issued a circular dated 09.07.2021 keeping in view the amendment in Regulation 22(2) of the FCI Staff Regulations, 1971 vide notification dated 02.06.2021 and the DoPT OM dated 28.08.2020 and therefore, the respondents have the power and authority to carry out periodic review of the employees of the FCI for strengthening of administration under Regulation 22(2) of the FCI Staff Regulations, 1971. It was submitted that merely because a review was conducted in respect of the petitioner in the year Page No.# 14/29 2021 after attaining the age of 50 years, such previous exercise would not stand as a bar for fresh exercise being conducted in respect of the petitioner.
26) It is submitted that the Review Committee considered the APAR and vigilance reports in respect of the petitioner by following the guidelines contained in (a) Regulation 22(2) of the FCI Staff Regulations, 1971, (b) DoPT OM dated 28.08.2020, and (c) FCI Circular dated 09.07.2021. Thereafter, the Review Committee had made the necessary recommendations in respect of the petitioner to the appropriate authority and accordingly, order dated 12.06.2023 was issued by the Managing Director of FCI. It has been submitted that the criteria laid down in paragraph 10 of the FCI circular dated 09.07.2021 was duly considered and followed by the Review Committee and the entire service record of the writ petitioner, including the memos, show cause notices, charge sheets, penalties, APARs' reading, remarks about integrity and the general reputation of the petitioner in the organization were duly considered and taken into account by the Review Committee.
27) It was submitted that after the impugned order was passed, the representation dated 21.06.2023, submitted by the petitioner was forwarded to the Representation Committee and the said Committee had observed that on six occasions, the petitioner was given memos, show cause notices and charge-
sheets on various allegations of misconduct and that on two occasions the petitioner was charge-sheeted under major penalties clause. It was submitted that the service records of the petitioner clearly indicates that his conduct and reputation was not up to the mark. In this regard, it is submitted that one has to look into overall performance of the petitioner and that merely because petitioner was promoted, those adverse marks do not get obliterated. It is submitted that the authorities will also have to consider that even if a person Page No.# 15/29 does not contribute to the organization, he is unfit for the organization.
28) It has been submitted that it is not the case of the petitioner that when he was promoted on 15.06.2011 to the post of DGM and on 31.10.2019, when he was promoted to the post of General Manager (General), he was promoted on the basis of merit alone and not on the basis of seniority cum fitness. Hence, it is submitted that there is no force in the projection made by the petitioner that as he was promoted 5 (five) years prior to his compulsory retirement, the impugned order was not sustainable.
29) It has been submitted that contrary to submission made by the learned senior counsel for the petitioner, there is a specific response to paragraph 9-C of the writ petition in paragraph-34 of the affidavit-in-opposition, wherein it is stated that the impugned order was passed by the appointing authority himself. It is further submitted that in the context of the impugned order dated 12.06.2023 (Annexure-8) of the writ petition, it is specifically stated that the said order has been passed by the Appointing Authority. Therefore, it is apparent that the recommendation of the Review Committee to compulsory retire the petitioner was placed before the Appointing Authority (respondent no.3), who had passed the impugned order and therefore, in passing the impugned order, it is unacceptable that the respondent no.3 had not approved the recommendation made by the Review Committee.
30) It has been submitted that pursuant to order dated 30.05.2024, his instructing counsel has produced the departmental records pertaining to the petitioner on 20.06.2024, and the said record discloses that the Review Committee had considered the entire service record of the petitioner.
31) It is also submitted that the foundational facts to support the Page No.# 16/29 allegation that the compulsory retirement of the petitioner was punitive, is not pleaded in the writ petition.
32) Accordingly, it is submitted that the cases cited by the learned senior counsel for the petitioner have application under the facts of the present case.
Reasons and decision:
33) Considered the submissions made by the learned senior counsel for the petitioner and the respondents. Perused the writ petition, affidavit-in-
opposition by the respondents, affidavit-in-reply by the petitioner, and sur- rejoinder by the respondent and documents appended thereto. Also perused the departmental records produced by the learned instructing counsel for the petitioner.
34) On a perusal of the departmental records, it is seen that the agenda note for the meeting of the Review Committee, scheduled to be held on 06.06.2023 at 10.30 AM reads as follows:
"Review of cases of CAT.I officers (Second time) under Regulation 22(2), working in the corporation who had already attained the age of 50 years and having birth year 1971, 1972 and 1973 (129 Officers)."
35) Thus, the respondent authorities have taken a conscious decision to review cases of CAT-I Officers for the second time under Regulation 22(2), who had already attained the age of 50 years having birth year 1971, 1972 and 1973 (129 Officers). In the list of the officers, for whom recommendations of review committee was solicited contained the name of the petitioner, whose name appears at Sl. No.55 with his date of birth recorded as 29.10.1971 and his date of retirement noted alongside is 31.10.2031. The record discloses that the Review Committee had considered all the APAR Page No.# 17/29 Grading of the petitioner since April, 2000 to December, 2021, out of which, there was no APAR for the period October to December, 2009 containing remark- "Less period no ACR". Upon consideration of the entire vigilance and administrative profile of the petitioner, it has been expressed in the minutes of the meeting of the Review Committee held on 06.06.2023 and 07.06.2023, it is mentioned inter alia that as per the opinion collected from his present and past controlling officers and other officers in the organization, who have worked with him, the general consensus was that the petitioner does not take any responsibility and that is why he was never assigned any sensitive/independent assignments, leaving a few occasions and it was observed that whenever he was assigned the duties to head the Divisional Office, most of the time he got involved in some or other irregularities or graded as weak performer in the assigned duties and accordingly, opinion was expressed that there was petitioner's incompetence of heading senior management post, which requires independent decision making. Opinion was also expressed that the petitioner has always been observed to work in lackadaisical manner with lack of devotion and tries to shirk the assigned responsibilities in one or the other way. Accordingly, the Review Committee took note of the broad criteria for examining these types of cases as indicated vide paragraph-10 of the FCI Circular dated 09.07.2021, which include the criteria that " Govt. servants whose integrity is doubtful, shall be retired". The Review Committee has specifically recorded that it had thoroughly examined the matter in light of available records and rule provision and accordingly, found that as the conduct and reputation of the petitioner establishes him of lacking in integrity, professionalism and seen as bottleneck in the decision making. The Review Committee expressed its opinion that the petitioner has completely failed to discharge his duties in a most Page No.# 18/29 efficient and transparent manner and it was further recorded that with an officer, who cannot discharge his responsibilities with honestly and efficiently, his continuance in service is detrimental to the public interest, especially, considering the fact that the FCI has a responsibility under National Food Security Act, 2013 towards supply of food grains to nearly 2/3rd population of the Country. Accordingly, the Committee expressed its unanimous opinion that continuation of the services of the petitioner is not in the interest of the corporation and public interest in general and therefore, the petitioner deserves to be retired from services of Food Corporation of India in terms of the Regulation 22(2) of the FCI Staff Regulations, 1971.
36) The records reveal that minutes of the Meeting of the Review Committee held on 06.06.2023 and 07.06.2023, was prepared, which was followed by the passing of the impugned order dated 12.06.2023, by the respondent no.3, to retire the petitioner w.e.f. 12.06.2023.
37) Thus, there is no material to presume that the recommendation of the Review Committee was not placed before the Managing Director, FCI (respondent no.3) and that without his approval, he had retired the petitioner. Therefore, it must be deemed that in approval of the recommendation of the minutes of the Review Committee, the respondent no.3 had passed the impugned order dated 12.06.2023, to retire the petitioner from service.
38) The vigilance and administrative profile of the petitioner is mentioned in paragraph-10 of this judgment and order. The nature of allegations against the petitioner is found to support the stand of the respondents that the overall performance of the petitioner is clouded by the adverse remarks against him. Moreover, in light of the view expressed by the Page No.# 19/29 Review Committee that the attitude of the petitioner was lackadaisical, it is apparent that he has not contributed to the FCI, where he has rendered service.
39) The impugned order dated 12.06.2023, does not contain anything to show that the said order was passed as a short-cut to avoid disciplinary action against the petitioner. It does not contain any adverse remarks or any sort of adverse imputation against the petitioner. The non- mentioning in the said order dated 12.06.2023, that the respondent no.3 has approved the recommendation of the Review Committee cannot be faulted with. If the respondent no.3 would have mentioned in the order dated 12.06.2023 that he had approved the recommendation of the Review Committee, such a remark might be read and/or construed to have the effect of exposing that the petitioner was compulsorily retired as the Review Committee had made its adverse recommendation against the petitioner. In that event, any reasonable person reading the order dated 12.06.2023, is likely to take a presumption that the continuance of the service of the petitioner in FCI was not found desirable. Thus, by non-mentioning of approval of the recommendation of the Review Committee, the respondent no. 3 is found to have made the order of compulsory retirement of the respondent to be non-stigmatic. Therefore, merely because it is not mentioned in the impugned order that the respondent no.3 had approved the recommendation of the review committee to compulsory retire the petitioner on attaining the age of 50 years, the absence of such a remark is not found to vitiate the impugned retirement order of the petitioner dated 12.06.2023, which in fact, protects the petitioner from any stigma attached to his retirement.
40) It is seen from the departmental records of the petitioner that his APAR from 2000 to December, 2021 was duly considered by the Review Page No.# 20/29 Committee; it had also considered the vigilance and administrative profile of the petitioner; considered the email dated 05.11.2021 from the General Manager, Karnataka to Executive Director (South) wherein, by referring to serious irregularities, request was made for posting the petitioner out of Karnataka; and also considered that the petitioner was awarded penalty of reduction of pay- scale by 2 (two) stages for a period of 1 (one) year vide order dated 25.04.2017, which was reduced to reduction in the scale of pay by 1 (one) stage for a period of 1 (one) year without cumulative effect vide appellate order dated 27.06.2019. Accordingly, on the basis of the departmental records, the Court is inclined to hold that the entire service record of the petitioner was taken into consideration by the Review Committee in its minutes of meeting dated 06.06.2023 and 07.06.2023. Accordingly, in the opinion of the Court, the Review Committee has not acted contrary to (a) Regulation 22(2) of the FCI Staff Regulations, 1971, (b) DoPT OM dated 28.08.2020, and (c) FCI Circular dated 09.07.2021. Resultantly, the recommendation of the Review Committee and the order dated 12.06.2023, to retire the petitioner, is not found contrary to the law laid down by the Supreme Court of India in the case of Baikuntha Nath Das (supra) and Central Industrial Security Force (supra).
41) The learned senior counsel for the petitioner had urged that no opportunity was granted to the petitioner for hearing before the Review Committee and also before the Representation Committee and thus, the petitioner's right to natural justice was violated. In this regard, the petitioner has failed to demonstrate that under the relevant Circular dated 09.07.2021 and notifications relating to periodical review of FCI employees that an officer under Category-I are entitled to be heard in course of the exercise to be undertaken by the FCI authorities and its Review Committee as well as the Representation Page No.# 21/29 Committee. Perhaps that is why the petitioner, in representation dated 21.06.2021, had not made a request for giving him an opportunity of a personal hearing. In this regard, it would be relevant to quote the observations of the Supreme Court of India in the case of Baikuntha Nath Das (supra), paragraph 34 thereof is quoted below:
"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 misbehavior.
(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 a 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 interference.
Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above."
42) Thus, it is a trite law as per paragraph 34(iii) of the case of Baikuntha Nath Das (supra), quoted above that principles of natural justice have no place in the context of an order of compulsory retirement.
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43) The case of Umedbhai M. Patel (supra), has distinguishable facts. In the said case, the respondent therein had crossed the efficiency bar at the age of 50 years and 55 years and then he was placed under suspension on 22.05.1986 and thus, it was held that the appellants had sufficient time to complete the disciplinary enquiry against the respondent and therefore, when the respondent had two years to retire and the Review Committee had not recommended his name, it was held that the order of compulsory retirement was passed under extraneous considerations. Therefore, the facts in the present case are not similar. It is seen that the Circular dated 09.07.2021, referred above, envisaged consideration of review of FCI employees that an officer under Category-I for the second time and the Review Committee had recommended the name of the petitioner for his compulsory retirement. Hence, the case of Umedbhai M. Patel (supra), does not help the petitioner.
44) The learned senior counsel for the petitioner had submitted that in paragraph 27 of the affidavit-in-opposition, the respondents have referred to the departmental proceeding of 2008 and 2011, whereby the petitioner was awarded minor penalty. However, subsequently, he was promoted to the post of DGM, thus by citing paragraph 32 of the case of Ram Ekbal Sharma (supra), it was submitted that the Court can lift the veil to find out whether the order is based on misconduct of the government servant concerned or extraneous purpose. In this regard, it may be stated that it is a trite law that for the purpose of reviewing whether the service of the government employee is to be retained or he should be compulsorily retired, his entire service record/ APARs is required to be examined. In this regard, it is seen that in the case of Babu Lal Jangir (supra), amongst others, the Supreme Court of India had clarified that the after promotion, the adverse remarks against the employee would have no Page No.# 23/29 relevance and can be treated as wiped off when the case of the government employee is considered for further promotion, however, the washed off theory will have no application when the case of the employee is being assessed to determine whether he is to be retained in service or requires to be given compulsory retirement. Paragraph 24 and 25 thereof is quoted below: -
"24. The principle of law which is clarified and stands crystallized after the judgment in Pyare Mohan Lal v. State of Jharkhand and Ors.; 2010 (10) SCC 693 is that after the promotion of an employee the adverse entries prior thereto would have no relevance and can be treated as wiped off when the case of the government employee is to be considered for further promotion. However, this 'washed off theory' will have no application when case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given compulsory retirement. The rationale given is that since such an assessment is based on "entire service record", there is no question of not taking into consideration an earlier old adverse entries or record of the old period. We may hasten to add that while such a record can be taken into consideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage. For example, as against some very old adverse entries where the immediate past record shows exemplary performance, ignoring such a record of recent past and acting only on the basis of old adverse entries, to retire a person will be a clear example of arbitrary exercise of power. However, if old record pertains to integrity of a person then that may be sufficient to justify the order of premature retirement of the government servant.
25. Having taken note of the correct principles which need to be applied, we can safely conclude that the order of the High Court based solely on the judgment in the case of Brij Mohan Singh Chopra was not correct. The High Court could not have set aside the order merely on the ground that service record pertaining to the period 1978-90 being old and stale could not be taken into consideration at all. As per the law laid down in the aforesaid judgments, it is clear that entire service record is relevant for deciding as to whether the government servant needs to be eased out prematurely. Of course, at the same time, subsequent record is also relevant, and immediate past record, preceding the date on which decision is to be taken would be of more value, qualitatively. What is to be examined is the "overall performance" on the basis of "entire service record" to come to the conclusion as to whether the concerned employee has become a deadwood and it is public interest to retire him compulsorily. The Authority must consider and examine the overall effect of the entries of the officer concerned and not an isolated entry, as it may well be in some cases that in spite of Page No.# 24/29 satisfactory performance, the Authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee "rendered himself a liability to the institution", there is no occasion for the Court to interfere in the exercise of its limited power of judicial review."
45) In light of above, when the record relating to Review Committee has been perused, it cannot be culled out that the recommendation to compulsorily retire the petitioner is taken on extraneous circumstances. It may be mentioned that in paragraph 35 above, the opinion of the Review Committee has been discussed, by which the Committee had made a unanimous recommendation that the continuation of the services of the petitioner is not in the interest of the corporation and public interest in general and he deserves to be retired from services of FCI in terms of the Regulation 22(2) of the FCI Staff Regulations, 1971.Accordingly, it is seen that the case of Ram Ekbal Sharma (supra), decided by the Supreme Court of India in the case of Narayan Dutt (supra), decided by the Jammu & Kashmir and Ladakh High Court does not help the petitioner.
46) The learned senior counsel for the petitioner had referred to the decision of the Supreme Court of India in the case of Baldev Raj Chadha (supra) to project that in the said case as there were no adverse remarks in the confidential reports of the appellant therein for the years 1971-72, 1972-73, 1973-74, 1974-75 and 1975-76 till the date of his retirement from service on 27.08.1975, it was held that no adverse entries at least for five years immediately before compulsory retirement, appeal was allowed and the order of compulsory retirement was quashed. Accordingly, it is submitted that even in the present case in hand, there were no adverse entry regarding the petitioner integrity in his APARs of last five years before the order dated 21.06.2023 was Page No.# 25/29 passed and therefore, it was submitted that in light of the settled decision, the order of compulsory retirement be set aside. On facts, the present case is found to be different from the fact of the case of Baldev Raj Chadha (supra). In paragraph 11 thereof it has been mentioned to the effect that the Review Committee reviewed the several records of the appellant and found adverse entries in various confidential reports, and inter alia, held that the appellant was unable to perform his duty efficiently and effectively in the post held by him and recommended compulsory retirement under FR 56(j)(i). It is reiterated that in paragraph 35 above, the considerations on which the Review Committee had given its recommendation has been mentioned. Therefore, the recommendation to retire the petitioner under Regulation 22(2) of the FCI Staff Regulations, 1971 is not based merely on the earlier adverse entries in the petitioner's APAR. Therefore, the case of Baldev Raj Chadha (supra) does not come to the aid of the petitioner.
47) The learned senior counsel for the petitioner has referred to the case of Rajnish Kumar Jamindar (supra). As per the facts of the said case, in furtherance of Regulation 13 of the M.P. State Cooperative Dairy Federation Ltd. Employees Recruitment, Classification and Conditions of Service Regulations, 1985, Scrutiny Committee and Review Committee were constituted for the purpose of finding out how many employees can be compulsorily retired in terms thereon. However, in view of the fact that the appellant Federation was found to be dominated and controlled by the Government administratively and functionally. It was held that the appellant Federation was a State as per Article 12 of the Constitution of India and accordingly, it was held that the Federation had adopted the rules and circulars made or issued by the State Government and that the Federation itself having formulated the criteria required to be Page No.# 26/29 applied for passing orders of compulsory retirement, was held to be bound thereby. Under those background facts, the Supreme Court of India had referred to the finding by the learned Single Judge noticed that the Regulations were amended in conformity with the Government circulars and thus, as 16 employees has the average grading being "Good", it was held that their services could not have dispensed with.
48) It further appears from the case of Rajnish Kumar Jamindar (supra), that although in many cases ACRs were not available but an attempt had been made to grant "Average" on the basis of the year and it was also noticed that although the Scrutiny Committee was required to lay an emphasis on the grading of last five years, there was no justification why the last two years' grading had not been taken into consideration. On those grounds, the interference of the High Court in respect of the order of compulsory retirement did not find favour of the Supreme Court of India and the appeals by the Federation were dismissed. Thus, the facts of the present case are distinguishable and therefore, the said cited case does not find to help the petitioner.
49) The learned senior counsel for the petitioner has cited the case of Captain Pramod Kumar Bajaj (supra) to bring on the point that the Court has the power to peers the smoke screen to ascertain whether the order of compulsory retirement is punitive in nature and was passed to short circuit the disciplinary proceeding and to ensure his immediate removal. As per the facts of the case, the Supreme Court of India found that the order of compulsory retirement was passed on 27.09.2019 whereas the appellant was to superannuate in ordinary course in January, 2020 and in the said context when the authorities were found to grade the appellant as outstanding till July 2019 Page No.# 27/29 and had assessed his integrity as "beyond doubt", the order of compulsory retirement was interfered with. Moreover, in the background facts as stated in paragraph 2 to 7 of the said judgment, the petitioner had approached the Tribunal against an adverse Intelligence Bureau report, which was interfered with and the writ petitions as well as SLP by the respondents were dismissed. Thereafter, vigilance clearance of the appellant granted on 21.01.2018 was withheld, the operation of which was ordered not to implead the consideration for appointment to the post of Member ITAT followed by another impugned order that withholding of the vigilance clearance would not come in the way of his appointment. Thereafter, name of the appellant was placed in the "Agreed List", which is a list of Gazetted Officer of suspect integrity prepared by the Department. Thereupon, the SLP filed by the respondent before the Supreme Court of India against impugned relief granted by the Tribunal, confirmed by the High Court was dismissed. The appellants proceedings before the tribunal of placing his name in the "suspect list" was allowed and decision to withhold vigilance clearance was interfered with and the direction to appoint the petitioner to the post of Member, ITAT was not complied with and in the writ petition filed by the respondent before the High Court, no interim order was passed to stay the judgment dated 06.03.2019 passed by the Tribunal. Moreover, non-compliance of the High Court's order dated 30.05.2017, contempt petition was filed and by order dated 30.08.2019, the High Court permitted impleadment of the Chairman of the CBDT in the contempt petition was allowed and notice was issued to show cause as to why he should not be punished for willful disobedience. Similar notices were issued by the Tribunal on two contempt petitions filed by the appellant for non-compliance of order dated 30.05.2017 and 06.03.2019. Thereafter, charge-sheet in a disciplinary Page No.# 28/29 proceeding was issued against the appellant on 17.06.2019.In July 2019, a DPC was convened by the UPSC to consider promoting the appellant to the post of Principal Commissioner, but due to pending disciplinary proceeding, decision in his respect was placed in seal cover. Thereafter, in a writ petition filed by the petitioner against the memorandum of charges, the High Court had granted stay order in his favour. This was followed by the action of the respondent to compulsorily retire the appellant on 27.09.2019. Under such factual backgrounds, the judgment in the case of case of Rajnish Kumar Jamindar (supra), was passed by the Supreme Court of India, the facts of which is distinguishable from the facts of the present case.
50) Therefore, in light of the discussions above, the Court is of the considered opinion that the respondent authorities being the Review Committee is found to have taken into consideration all the relevant facts in impleading the entire service records of the appellant and thereafter, recommended the petitioner for his retirement. Thus, there are no good grounds for the Court to interfere with the said recommendation. In light of the decisions cited by the learned senior counsel for the appellant, the Court has examined the records so as to see whether by lifting the veil it can be found that the order to compulsory retirement of the petitioner is for public purpose or as a short cut to circumvent or avoid disciplinary proceeding. The same is answered in the negative and against the petitioner.
51) Resultantly, the impugned order dated 21.06.2023, passed by the respondent no. 3 to superannuate the petitioner is not found to be vitiated in any manner.
52) Consequently, the order dated 14.08.2023 by the respondent no.3, thereby communicating to the petitioner that the representation against Page No.# 29/29 the order dated 21.06.2023 had been examined by the Representation Committee and that on perusal of the representation of the petitioner and the Representation Committee report, the respondent no.3 had rejected the representation is also not found liable to be interfered with. It may be mentioned that the records of the FCI reveals that the Representation Committee to review the representation submitted by the petitioner had held its meeting on 26.07.2023, wherein the said Committee took note that on six occasions the petitioner was given memo/ SCN/ charge-sheets indicating various relations of misconduct and that he was charge-sheeted on major penalties on two occasions that his APARs prior to 2009 petitioner had earned fair/ good grading. Moreover, the Committee had also considered that the records indicate that the petitioner's conduct and reputation was not up to the mark and accordingly, the finding of the Review Committee was stated to hold good.
53) Resultantly, in light of the discussions above, this writ petition fails and the same is dismissed.
54) Under the circumstances, the parties are left to bear their own cost.
55) The records of the FCI which was produced by the learned standing counsel for the FCI, being photocopies, are retained on record.
JUDGE Comparing Assistant