* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.856/2001
% 5th December, 2013
V.K. SHARMA ..... Petitioner
Through: Mr. Pradeep Misra, Advocate with
Ms. Daleep Kumar Dhayani,
Advocate.
Versus
STATE FARMS CORPORATION OF INDIA LTD. AND ANR.
...Respondents
Through: Mr. C.N. Sreekumar, Advocate with Ms. Resmitha R. Chandran, Advocate for respondent Nos.1 and 2. CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition, the petitioner impugns the action of his employer/respondent no.1/State Farms Corporation of India Ltd in passing the order dated 29.1.2001, retiring the petitioner in exercise of powers under Rule FR56 (j) of the Fundamental Rules.
2. The provisions of Fundamental Rule FR56 (j) provides that after a particular age if the employer thinks fit, the employee can be W.P.(C) No.856/2001 Page 1 of 10 retired. Rule FR 56(j) reads as under:-
"Rule FR 56(j) Notwithstanding anything contained in this rule, the Appropriate Authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant 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‟ service or post in a substantive, quasi-permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years;
(ii) in any other case after he has attained the age of fifty-five years."
3. A reading of the aforesaid rule shows that if the appropriate authority on forming of an opinion that it is in public interest, then, the employer has absolute right to retire a person by giving three months notice. In the present case, petitioner has been retired after the age of 55 years in terms of the impugned order dated 29.1.2001, which is accompanied by the reasons of the same date, and which reads as under:-
" OFFICE ORDER 29.1.2001
SFCI/PF/188/71 GA(Vol IV)
Whereas the Board of Directors of State Farms Corporation of India Ltd. had at its 173rd Board Meeting held on 25/1/2001, formed an option that it is in the interest of the corporation to do so. Now therefore in exercise of the powers conferred by the Regulation 52 of the staff Regulation of State Farms Corporation of India Ltd. r.w. FR 56(j) of Fundamental Rules, the Board of Directors hereby retire Sh. V.K.Sharma from the post of Chief Agriculture with immediate effect.
W.P.(C) No.856/2001 Page 2 of 10 Two cheques bearing No. 393960-61 for an amount of Rs.63,234/- (Rupees sixty three thousand two hundred thirty four only) equivalent to the amount of his pay plus allowances for a period of 3 months calculated at the same rate at which he was drawing them immediately before his retirement is enclosed herewith.
For and on Behalf of Board of Directors of State Farms Corporation of India Ltd.
K.ARYA MANAGING DIRECTOR"
"SFCI/PF/188/71 GA(Vol IV) 29.1.2001 As per the provisions of the staff regulation 52 of State Farms Corporation of India Ltd., service performance of Sh. V.K.Sharma Chief Agriculture and Sh. R.S.Malik Director (Engineering) was reviewed by the Board of Directors of State Farms Corporation of India Ltd. for considering retention or otherwise of the service of the above officials in the corporation on attaining the age of 50/55 years. The Board of Directors after careful consideration of the total service records and with emphasis on the performance and service records of Sh. V.K.Sharma after his promotion to the post of Chief Agriculture in 1990, had decided to retire Sh. V.K.Sharma Chief Agriculture from the services of the Corporation.
The Board of Directors after careful consideration of the total service records and with emphasis on the performance and service record of Sh. R.S.Malik in the post of Director (Engineering) had decided to retain his service in the corporation.
Therefore, in compliance of the decision taken by the Board of Directors at its 173rd Board of Meeting held on 25/1/2001, the undersigned hereby conveys the said orders of the Board W.P.(C) No.856/2001 Page 3 of 10 of Directors for retiring Sh. V.K.Sharma from the post of Chief Agriculture with immediate effect and retaining the services of Sh. R.S.Malik in the corporation.
K. ARYA Managing Director."
4. A reading of the reasons with the order shows that total service record of the petitioner was scrutinized qua his performance in service and especially after the petitioner‟s promotion to the post of Chief Agriculture in the year 1990, and considering such record it was decided to retire the petitioner.
5. At the outset, I must note that the power of Courts, i.e judicial review of an action under Rule 56(j), is extremely limited and as rightly pointed out by the counsel for the petitioner has to be examined only on the grounds that whether the action taken against the employee/petitioner is without any basis or whether the action is completely malafide. On these two touchstones, let us see whether the impugned order dated 29.1.2001 is justified or not. I may also in this regard state that order passed under Rule 56(j) does not have to be like a judgment of a Court which must give reasons in detail and it is sufficient if the reasons are found in the record existing with the employer.
6. No doubt, the petitioner in Ground (E) of the writ petition has W.P.(C) No.856/2001 Page 4 of 10 contended that petitioner‟s record was flawless and integrity was unquestionable and consequently the impugned decision dated 29.1.2001 is not sustainable in law, however, in order to determine existence of valid reasons and therefore absence of malafides, the same will have to be examined not as per ipse dixit of the petitioner, but as per the records of the employer and whether the said record justifies the action under Rule FR 56
(j).
7. When we refer to the counter-affidavit it is seen that entire service records were examined and which showed that the petitioner had on many occasions found to have unsatisfactory performances. With respect to the year 1993-1994 the petitioner was charge-sheeted and therefore the assessment was that the functioning of the petitioner was far from satisfactory. With respect to the year 1994-1995, petitioner did not submit his resume and therefore his ACR could not be prepared. For the years 1995 to 1997 petitioner‟s assessment was satisfactory and which would also so remain for the years 1997-1999 inasmuch as there were no ACRs prepared of the petitioner and counsel for the petitioner therefore correctly urges that the ACRs should be taken as „average‟ for these two years. So far as the year 1999-2000 is concerned, it is specifically noted in the ACR that if the petitioner‟s services are to be continued in the W.P.(C) No.856/2001 Page 5 of 10 respondent no.1, then, petitioner has to be carefully watched for another year.
8. Therefore, it is not as if that petitioner has had very good or excellent reports. Average or satisfactory services cannot mean that on such basis there is an automatic entitlement to continue and the action of the employer in retiring the employee is in violation of the spirit of FR 56(j). In this regard also it cannot be ignored that there was already a charge-sheet pending against the petitioner and with respect to which ultimately an order was passed by the respondent no.1 imposing the reduction of 5% gratuity amount on the petitioner because petitioner is stated to have caused loss to the respondent no.1/ employer organization by changing the size and number of plots as also other aspects with respect to plots which were to be auctioned and allotted by the respondent no.1 at Suratgarh. The ACR with respect to the year 1999-2000 makes a specific statement of petitioner to be watched for continuation of his services. No doubt, petitioner contends that this remark was not justified, however, I cannot substitute my view for that of the assessment authority and hold that assessment authority was not justified in giving this remark, more so when no independent proceeding has been filed by the petitioner to challenge the ACR assessment with respect to the year 1999-2000. The W.P.(C) No.856/2001 Page 6 of 10 counter- affidavit filed by the respondent no.1 further shows that various aspects were considered by the Board of Directors of the respondent no.1 for taking action under FR 56(j) and some of these aspects include petitioner being subjected to a departmental enquiry, respondent no.1/company running into continuous losses and therefore Board of Directors were to take corrective steps for bringing about improvements in the performance of the corporation and its employees, petitioner with respect to the annual balance sheet sent for the year 1988-1989 showed the profit of Rs.2 lacs which was in fact reduced to a loss of Rs.30.68 lacs by the auditors of the company and whereby petitioner was found to be manipulating the performance figures. Counter affidavit also shows that as against the higher claim of the petitioner for performance, actually, targets were not met of seed production from 1994-1995 to 1999-2000, and this becomes clear from the following facts as stated in the counter-affidavit:-
YEAR TARGET ACTUAL (Prodn.
In qtls)
1994-95 2,63,000 1,98,108
1995-96 2,81,000 1,91,467
1996-97 3,07,000 2,01,478
1997-98 3,67,000 1,67,778
1998-99 3,05,000 1,71,681
1999-2000 3,09,000 2,14,150
Counter-affidavit also shows that petitioner was also not W.P.(C) No.856/2001 Page 7 of 10 responsible enough inasmuch as he failed to undertake the necessary and regular inspections as were expected of him and he conducted far lesser inspections. Details of these figures of inspections have been given in the counter-affidavit.
9. While hearing a petition challenging an action of an employer under Rule 56(j) this Court cannot minutely re-examine the materials as an Appellate Court and substitute its decision for that of the departmental authorities. All that is required is for the employer to show that there has been a fair assessment and fair consideration of the record. In my opinion, counter-affidavit shows that there is a fair assessment and fair consideration of the service record of the petitioner, and that too for a long period of ten years, and in terms of the facts as available on record including the fact that company was going into losses and was required to take corrective steps, it cannot be said that action against the petitioner of retiring him under Rule 56(j) is not in any manner malafide or illegal or without any basis. At best there may be two views possible of a situation, however, once two views are possible, this Court will not substitute its views for that of the employer.
10(i). Counsel for the petitioner sought to place reliance upon the judgment of the Supreme Court in the case of Pritam Singh Vs. Union of W.P.(C) No.856/2001 Page 8 of 10 India 2004 (8) SCALE 116 and which was argued for being read with Rule 146 of the Rules of the respondent No.1/organization that once disciplinary proceedings provided for compulsory retirement the normal law with respect to compulsory retirement will apply, and petitioner‟s punishment is vitiated as being disproportionate to the acts which are alleged against him.
(ii) In my opinion, the argument urged on behalf of the petitioner is misconceived because imposition of a punishment order in disciplinary proceedings of compulsory retirement is a totally separate issue than compulsory retirement in terms of Rule FR56 (j) and which takes place after a particular age. Comparison by the petitioner of the punishment order by disciplinary authority of compulsory retirement with an action under Rule FR 56(j) is in my opinion like comparing apples with oranges and which cannot be done.
11. In view of the above, I do not find any reason to hold that petitioner has made out a case for setting aside the impugned order dated 29.1.2001. I also do not find that petitioner has made any case of malafides against him or lack of any basis/reason for setting aside the impugned order passed under Rule FR56 (j).
W.P.(C) No.856/2001 Page 9 of 10
12. Writ petition is therefore dismissed, leaving the parties to bear their own costs.
DECEMBER 05 , 2013 VALMIKI J. MEHTA, J.
Ne
W.P.(C) No.856/2001 Page 10 of 10