Shri R.B. Chauhan vs Food Corporation Of India And Anr. ...
2006 Latest Caselaw 552 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The writ petitioner in these proceedings, under Article 226 of the Constitution of India, is aggrieved by the issuance of an order by the Food Corporation of India (FCI), his employer, compulsorily retiring him from the services.

2. The Petitioner was appointed in the year 1960 as a go-down clerk in the department of food, Govt. of India by Regional Director, Food. It is alleged that the said appointing authority was equivalent to Zonal Manager of FCI. On formation of FCI, the Petitioner's services were transferred to it in the year 1966. The petitioner was working as Assistant Grade IIII(D) and was later promoted as A-GII(D) in 1968; he was later promoted as Assistant Grade-I(D) on 7.4.1981 by Zonal Manager (North), his appointing authority.

3. It is averred that as per Appendix I at Sr. No.4, to the Staff Regulations of FCI, the mode of recruitment for AGI(D) post held by the petitioner is 100% by way of promotion, and that all the promotions would be considered by Promotion Board only. The Board is headed by Zonal Manager. It is therefore, alleged that the Zonal Manager should have passed such orders in consultation with the Promotion Board.

4. The petitioner avers that the Senior Regional Manager (FCI) who was not competent, being lower in rank and subordinate to Zonal Manager, issued the impugned order dated 26/27.12.1988, illegally under Staff Regulation 22(2) compulsorily retiring him without disclosing any ground or justification for premature retirement and without affording any opportunity of being heard in any manner whatsoever. The order is attacked as a punitive order, though couched in innocuous terms.

5. The petitioner alleges that as per Staff Regulations 19(3) and 19(4) the competent authority for purpose of this Regulation will be an authority not lower in rank than the appointing authority. It is therefore alleged that the petitioner's appointing authority alone was competent to issue the order of compulsory retirement. However, an official lower in rank issued it, therefore it is illegal.

6. In the course of hearing, the counsel for petitioner, Mr. Bahar-ul- Burqui, submitted that apart from the impugned order being vitiated and illegal on account of its having been issued by an official not competent to do so, it is also unsustainable, since it is nothing but a camouflaged dismissal. The authorities were impelled by allegations that amounted to misconduct, based upon malafide assumptions about the Petitioner's responsibility about shortage of 64 bags of rice and partial shortage of 375.44 quintals which is a blatantly false ground for retirement as neither any notice or any charge sheet or any enquiry or any penalty was ever issued by the Respondent. Counsel also submitted that the justification given for the impugned order, namely the poor record of the petitioner, reflected in his annual confidential report (ACRs) cannot pass muster, or stand judicial scrutiny. They were based on no material; indeed the persons who held the review leading to the impugned order, were themselves suspended and later terminated from services. The counsel also submitted that the FCI's reliance on an adverse ACR, for 1984-85, was malicious, and without justification.

7. The learned counsel has relied upon the judgment of the Allahabad High Court, in Makhan Singh v. FCI to say that the Senior Regional Manager was incompetent to pass the impugned order. It is also submitted that even otherwise, as held by the Supreme Court, 'appointing authority' means one who appointed him at the time of his appointment. It is contended that admittedly, Senior Regional Manager was not the appointing authority. Reliance has been placed upon the judgments of the Supreme Court in Dharam Dev Mehta v. Union of India , to say that the competent authority is one who appointed the employee. Other decisions cited were Jai Jai Ram v. U.P. S.R.T.C. reported in AIR 1996 SCC 2279 and State of U.P. Versus Yamuna Shankar (Civil Appeal No. 1878 of 1997 arising out of SLP(c) No. 13180 of 1995) decided on 21.2.1997.

8. It was averred on behalf of the FCI, and contended by Shri Vinod Kumar, that the impugned order is neither arbitrary nor illegal; it was issued in bona fide exercise of power. It was contended that the FCI considered the records of the petitioner's services, and formed an opinion that he was not fit to be continued in the organization, in public interest. In such cases, the exercise of discretion by the employer cannot be termed as issuance of a punitive order. Learned counsel relied on the judgment reported as Baikuntha Nath Das v. Chief District Medical Officer to say that no order of compulsory retirement can be attacked as per se punitive; it is neither a punishment nor does it involve adverse consequences. It was submitted that the scope of judicial review in such cases is well settled; the court only examines whether the provisions of law have been infracted, or the order is vitiated by mala fides, or non application of mind to relevant circumstances.

9. Counsel also contended that there is no merit in the contention of the petitioner that the authority competent to issue the compulsory retirement order, had not passed it. Reliance was placed on an amendment to Regulation 56, made in 1987, before the issuance of the order of compulsory retirement, to say that the appointing authority was no longer the Zonal Manager, but the Senior Regional Manager, who had issued the impugned order. It was contended that unlike in the case of penalty, an order of compulsory retirement could be issued by an authority empowered to appoint incumbents to the post, regardless of whether such authority had indeed made the appointment in the first place.

10. Counsel for the respondent relied upon the records, produced in the course of hearing, to say that the petitioner's service record was not satisfactory. In fact, it was submitted that the petitioner himself disclosed that no less than five charge sheets were issued to him during his career; though three of them were withdrawn, departmental proceedings had culminated in issuance of two minor penalties. Further, the ACRs painted a dismal picture. Thus, taking an overview of the entire matter, the authorities formed a bona fide opinion that the petitioner's services could not be continued in public interest.

11. The factual narrative and the contentions noticed show that this petition requires determination of two points. One, whether the impugned order was passed by a competent authority; and two, whether the order is vitiated, or illegal as amounting to a disguised, dismissal, or a punitive order, issued without holding an enquiry mandated by law.

12. There is no dispute about the fact that the authority who appointed the petitioner was of a higher rank than the one who issued the order of compulsory retirement. The petitioner places strong reliance on the decision of the Allahabad High Court in Makhan Singh's case (supra) and other decisions of the Supreme Court, to say that only the authorities who initially appointed the official can issue disciplinary orders, irrespective of subsequent changes in the concerned rules or regulations. Prior to 1987, the appointing authority, in terms of the Regulations, particularly regulation 56, for the purposes of appointment and initiation of disciplinary proceedings, for the post held by the petitioner was the Zonal Manager. The position changed, on the 16th October, 1987, when the amendment was notified in the Official Gazette, and the Senior Regional Manager acquired those powers.

13. The judgment in Dharam Dev Mehta (supra) cited on behalf of the petitioner, to my mind, is of no assistance, since that case concerned the legality of an order pertaining to a public servant, who had protection of Article 148, which is akin to Article 311. In this case, the petitioner was not a civil servant, or holder of civil post, and thus, not entitled to invoke its protection. Interestingly, in the case of Jai Ram v. U.P. State Road Transport Corpn. relied upon by the petitioner, the Supreme Court held as follows:

It was next contended that the officers who had taken action against the appellants had no power to make appointments in government service or on civil posts while they were on deputation with the Corporation and, therefore, they could not have taken any action against the appellants in view of the protection afforded by Article 311. It was submitted that the authority contemplated by Article 311 is the authority which should have power to appoint a person on a civil post under the Union or a State, as the case may be. We do not find any substance in this contention also. Article 311 gives protection to a member of a civil service of the Union or an all-India service or a civil service of a State or to a person holding a civil post under the Union or a State against dismissal or removal by an authority subordinate to that by which he was appointed. Article 311 does not provide that a member of a civil service or a person holding a civil post either under the Union or a State cannot be dismissed or removed by an authority except the appointing authority. There is no requirement that the authority which takes disciplinary action must continue to have the power of making appointment to the civil service or on a civil post under the Union or a State. It can be any other authority so long as it is not subordinate in rank or grade to the authority by which the delinquent government servant was appointed. That is the only requirement of Article 311 and we cannot read anything more into it. In State of U.P. v. Ram Naresh Lal this Court has in clear terms held that there is nothing in the Constitution which debars a Government from conferring powers on an officer other than the appointing authority to dismiss a government servant provided he is not subordinate in rank to the appointing officer or authority.

In an earlier decision, reported as State Bank of India v. S. Vijaya Kumar , the Supreme Court held as follows:

24. Now so far as the right which has been conferred on the employees of the State Bank contained in Regulation 55(2) (a) is that such officers or employees shall not be dismissed from service of the State Bank by an authority lower than the appointing authority. Thus a comparison of the provisions contained in Article 311(1) of the Constitution and the right guaranteed to the employees of the State Bank under Regulation 55(2)(a) shows that there is a material difference between the language used in the two provisions. Under Article 311(1) the words used are by which he was appointed.

In Regulation 55(2)(a) there are no such words by which he was appointed and in its place the only right guaranteed is that the employee shall not be dismissed by an authority lower than the appointing authority. Thus the right guaranteed in the case of the officers or employees of the State Bank is that the order of dismissal cannot be passed by an authority lower than the appointing authority. A perusal of the relevant Regulations and Rules mentioned above clearly go to show that Chief General Manager had become that appointing authority of the employees in question under Regulation 55(2)(a) with effect from July 1, 1974. Admittedly the orders of dismissal have been passed long after these amendments when the Chief General Manager had already become their appointing authority under the Regulations and the Rules. The right that an officer or employee of the State Bank of India cannot be dismissed from service by an authority lower than the appointing authority is a creation of statutory rules and regulations. So far as the right or protection guaranteed under Article 311 of the Constitution is concerned, it applies to members of the Civil Service of the Union or an All India service or a Civil Service of a State or who holds a civil post under the Union or a State. Admittedly the employees of the State Bank do not fall under any one of these categories and they cannot seek any protection under Article 311(1) of the Constitution. The employees of the State Bank can only claim such rights which have been conferred under Regulation 55(2) (a) of the General Regulations. The only right conferred under the said provision is that the officers or employees of the State Bank cannot be dismissed by an authority lower than the appointing authority. With the risk of repetition it may be stated that on the date when the order of dismissal has been passed, the Chief General Manager had already become the appointing authority and as such the order of dismissal has not been passed by an authority lower than the appointing authority.

This decision was followed in Satinder Singh Arora v. State Bank of Patiala 1992 (Supp2) SCC 224. It is therefore, clear that the issuance of an order imposing penalty can be considered valid, even if the official is lower in rank than the original authority who appointed him. In this case, neither can, nor is the petitioner entitled to protection of Article 311; the order was not imposed as a measure of penalty. I am therefore of the opinion, that the order cannot be characterized as illegal for want of jurisdiction, under the Rules.

14. That leads to the second point, namely whether the order is punitive, or arbitrary. The impugned order reads as follows:

ORDER

Whereas the Senior Regional Manager, Food Corporation of India, Punjab Region, Chandigarh is of the opinion that it is in the public interest to do so:- Now, therefore, in exercise of the powers conferred by clause(2) of Regulation 22 of the Food Corporation of India, Staff Regulations, 1971, the Sr. Regional Manager hereby retired Shri R.B. Chauhan, Asstt. Grade-I(Depot) with immediate effect, he having already attained the age of 50/55 years, by giving him 90 days pay in lieu of the notice after deduction of Income Tax dues. Shri R.B. Chauhan, Assistant Grade-I(Depot) is being paid a sum equivalent to the amount of his pay plus allowances for a period of three months calculated at the same rate at which he was drawing then immediately before his retirement. An account payee cheque bearing No. 725121 dated 27-1288 for a sum of Rs.6530-50 P (Rs. Six thousand five hundred thirty and fifty paise drawn on SBI in favor of Shri R.B. Chauhan is accordingly enclosed.

15. The relevant provision, Regulation 22 of the FCI Staff Regulations, reads as follows:

Regulation 22. Superannuation and retirement:

(1) Every employee appointed to the service of the Corporation shall retire on the last date of the month in which he attains the age of 58 years. Provided that a category IV employee who has been transferred to the Corporation under Section 12 A of the Act and who has opted to be governed by leave, provident fund, retirement or other terminal benefits admissible to the employees of the Central government in accordance with the rules and orders of the Central Government as amended from time to time in terms of Sub-Section (4) of Section 12 A of the Act, shall retire on the last date of the month, on which he attains the age of 60 years.

(2) Notwithstanding anything contained in Clause (1): the appropriate authority shall, if it is of the opinion that it is in the interest of the Corporation to do so, have the absolute right to retire a Category I, II, III and IV employee after he has attained the age of 50 years, by giving him a notice of not less than 3 months in writing or 3 months pay and allowances in lieu of such notice. Provided that an employee belonging to the above four categories may, by giving a notice of not less than three months in writing to the appropriate authority retire from service of the Corporation after he has attained the age of 50 years.

16. In Baikuntha Nath Das v. Chief Distt. Medical Officer , a three judge Bench of the Supreme Court laid down five principles, to be considered in judicial review, while determining validity of orders of compulsory retirement. Those principles have been universally followed, in subsequent decisions. The judgment and formulation of law was affirmed, by another three-Judge Bench of the Supreme Court, in Posts and Telegraphs Board v. C. S. N. Murthy . The court held as follows:

An order of compulsory retirement is not an order of punishment. FR 56(j) authorises the Government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service, if, in its opinion, public interest calls for such an order. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the Government to decide upon. The courts will not interfere with the exercise of this power, if arrived at bona side and on the basis of material available on the record.

17. In K. Kandaswamy v. Union of India , the Supreme Court, after reiterating the law laid down in the previous judgments, held that opinion formation for an order of compulsory retirement is to be be based on the materials on record otherwise it would amount to arbitrary or colourable exercise of power. It was also held that the decision to compulsorily retire an employee can, be challenged on the ground that requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds. In M. S. Bindra v. Union of India it was held that judicial review of an order of compulsory retirement is permissible if the order is either arbitrary or mala fide or if it is based on no evidence. The observation that principles of natural justice have no place in the context of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion, the same can be obviated on the assumption that other materials alone need be looked into. The threshold of a sustainable challenge to such orders of compulsory retirement was held to be as follows:

13. While viewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion.

18. In State of Gujarat v. Umedbhai M. Patel the Supreme Court re-stated the law on the point as follows:

11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:

(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.

(v) Even uncommunicated entries in the confidential record can also be taken into consideration.

(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favor of the officer.

(viii) Compulsory retirement shall not be imposed as a punitive measure.

19. In order to find out whether any government or public servant has outlived his utility and is to be compulsorily retired in public interest for maintaining an efficient administration, an objective view of his overall performance has to be taken before deciding, after he has attained the age of 50 years, either to retain him further in service or to dispense with his services in public interest. The scope of judicial review is limited, to overseeing that parameters indicated in Baikuntnath Dass's case and Umedbhai Patel's case (supra) are satisfied. In Umedbhai Patel and M. S. Bindra's case the court had held the materials to be inadequate, and the decision to retire the public servant to be vitiated. Umedbhai Patel's case was an instance where the decision was premised upon lodging of a criminal complaint, without any further action, which impelled, inter alia, the State to retire the public servant compulsorily.

20. In this case, the records of the respondent were produced. I have examined them. The respondent considered the relevant ACRs of the petitioner, which do not reflect any outstanding performance. There are several ACRs, which can lead to a conclusion that the petitioner outlived his utility. The review committee also noted existence of allegations. In addition, the petitioner does not dispute that he had faced five disciplinary proceedings, during his career; two of them culminated in imposition of penalties upon him. Therefore, this is not a case of no materials, or the materials not justifying a reasonable inference that the petitioner's services ought not to be continued, in public interest. Having regard to the objective of the exercise, in considering whether to continue services of such employees, or retire them, in public interest, the employer's considerations in this regard, as borne out from the facts of the case, cannot be held to be arbitrary or unreasonable. The mere circumstance that the FCI had occasion to make some investigation into allegations of shortage in certain supplies, does not ipso facto lead to the inference that the impugned order was founded on a misconduct, and therefore a masked or disguised dismissal, without following the procedure of holding an enquiry.

21. In view of the above findings, there is no merit in the writ petition, which is accordingly dismissed. Rule discharged. CCP No. 354/2002

22. This petition alleges non-compliance with directions of the court to produce relevant records, and permit inspection to the petitioner. No formal notice was issued in these proceedings. During the hearing of the main writ petition, the respondents produced the records relied upon; the counsel for petitioner states that all the records were not shown to him, as well as to the Court. The other grievance raised originally was that some amounts had not been paid; a look at the documents filed in support of the contempt petition discloses that the petitioner does not deny payments; his grievance is that the amounts were disbursed late. In view of the findings on the merits in the writ petition, and considering the circumstance that the original records relied upon were produced, I am of the opinion that there is no justification for issuing orders in these proceedings. The contempt petition is therefore, dismissed.