Airport Authority Of India Ltd. vs Shri K.K. Sud And Ors.
2007 Latest Caselaw 1819 Del

JUDGMENT

Mukundakam Sharma, C.J.

1. In this appeal, the judgment and order dated 13th March, 2006 passed by the learned Single Judge is under challenge. By the aforesaid judgment and order, the learned Single Judge allowed the writ petition filed by the respondent holding that the order of compulsory retirement passed against the respondent was punitive as the same was passed as a short cut to avoid the departmental inquiry. Consequent thereupon an order was passed by the learned Single Judge that the respondent shall be paid his salary and allowances to which he was entitled to had he continued in service, till his retirement in the normal course, along with interest @ 8% per annum for the period from 1st January, 1999.

2. Being aggrieved by the said order, this appeal was filed on behalf of the Airport Authority of India Ltd. contending, inter alia, that the order passed by the appellant compulsorily retiring the respondent from service of the International Airport Authority of India should have been declared as legal and valid.

3. The respondent joined the services of Airport Authority of India in July, 1981 on deputation basis from the defense service and his period of deputation was to end on 15th July, 1984. Before that the Authority issued an advertisement calling for applications for filling up the post of Chief Engineer as against which the respondent submitted an application. His initial employer, namely, the Ministry of defense, gave permission to his intention to apply for the said post under the Airport Authority of India. The respondent was found fit and suitable for appointment and accordingly he was appointed as the Chief Engineer of the Airport Authority of India on 6th April, 1983. The appellant was also permanently absorbed in the services of the Authority on 12th June, 1984. By an order dated 18th November, 1985, the respondent was assigned duties of Member (Engineering) in addition to the duties as Chief Engineer till 6th February, 1987. A regular vacancy in the post of Member (Engineering) was advertised calling for applications from eligible candidates as against which the respondent also applied. While the process of appointment was under way, an order was passed on 6th February, 1987 transferring the current duty charge in the post of Member (Engineer) performed by the respondent to one Shri R.C. Rekhi, Chief Engineer (Electrical) and the respondent was treated as an Officer on Special Duty. As against the aforesaid action on the part of the Airport Authority of India, the respondent lodged a letter of protest dated 29th March, 1987. A memorandum containing warning was issued to the respondent by the Chairman on 3rd March, 1987. Thereafter also memoranda were issued to the respondent on 21st July, 1987 and 22nd July, 1987 as against which replies were filed by the respondent refuting the allegations. Thereafter on 20th August, 1987, an order was passed by the Airport Authority of India compulsorily retiring the respondent from service.

4. Being aggrieved by the aforesaid order, a writ petition was filed by the respondent taking up various pleas. A plea was taken that the Review Committee, which considered the matter of retirement of the respondent, was illegally constituted and that the order compulsorily retiring the respondent from service is punitive inasmuch as the same is based upon an inquiry which was held behind the back of the respondent.

5. The learned Single Judge, before whom various pleas were raised on behalf of the respondent/ writ petitioner and the appellant herein, considered the material on record and also discussed the ratio of various decisions, which were cited before him. The learned Single Judge referred to various decisions of the Supreme Court including Baikuntha Nath Das v. Chief District Medical Officer , Union of India v. Col. J.N. Sinha , H.C. Gargi v. State of Haryana and Gian Singh Mann v. High Court of Punjab and Haryana . Upon considering the aforesaid decisions along with other decisions of the Supreme court, namely, Posts and Telegraphs Board v. C.S.N. Murthy , K. Kandaswamy v. Union of India , the learned Single Judge culled out the following principles of law which are re-stated by the Supreme Court in State of Gujarat V. Umedbhai M. Patel :

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.

6. After crystallising the principles of law laid down by the Supreme Court and upon going through the orders as aforesaid, the learned Single Judge analysed the service records of the respondent and in the context thereof held that the appellant has not shown as to how the ACRs of the respondent were deemed unsatisfactory, particularly when he was permanently absorbed in 1984 as a Chief Engineer and assigned the responsibilities as Member Engineering. It was also held that the memoranda were issued to the respondent on the basis of the reports of the CVC and the CBI's letter. At this stage we may mention that when reply was being sent by the respondent as against the aforesaid memoranda, the aforesaid impugned order was passed. The impugned order dated 20th August, 1987, which was the subject matter of challenge in the writ petition, was worded in the following manner:

20th August, 1987

ORDER

Whereas Shri K.K. Sood, officer on special duty (Quality and Standardisation), IAAI has attained the age of 55 years.

And whereas the case of Shri K.K. Sood has been reviewed by the undersigned in the light of IAAI's general conditions of service.

And whereas after perusal of the relevant records the undersigned is of the opinion that Shri K.K. Sud is an officer of doubtful integrity and, therefore, his continuance in services of IAAI is not in public interest.

Now, therefore, the undersigned retires Shri K.K. Sud, O.S.D. (Quality and Standardisation), IAAI, IAAI from the services of IAAI with effect from the afternoon of 8th August, 1987.

A cheque bearing No. 736509 dated 20.8.87 for Rs. 17,643.60 in lieu of three month's notice pay of Shri Sud is annexed hereto.

Sd. Prof. N.K. Singh Chairman International Airport Authority of India.

7. In view of the contents and the language used and in the light of the decision of the Supreme Court in Jagdish Mitter v. Union of India ; Madan Gopal v. The State of Punjab and Ors. ; The State of Uttar Pradesh v. Madan Mohan Nagar and State of U.P. and Anr. v. Abhai Kishore Masta , it was held by the learned Single Judge that use of expression 'doubtful integrity' in the impugned order is punitive inasmuch as similar expression like 'found undesirable to be retained in Government service' was found to be ex facie punitive. One of the submissions that was made by the appellant that the expression 'doubtful integrity' as mentioned in the impugned order should be read as 'public interest', was not accepted by the learned Single Judge on the ground that nothing could be added or subtracted from the order itself as is held in the case of Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors. .

8. Counsel appearing for the appellant submitted before us that as to whether or not the respondent has outlived his utility was considered and assessment was made with regard to the performance and suitability of the respondent to be retained in service and if during the aforesaid course it transpires that there is some doubt with regard to his integrity, the same could always be reflected and mentioned in the order.

9. We are, however, unable to accept the aforesaid contention. If an expression was used with regard to suitability, the case could have been different. What is mentioned in the impugned order is with regard to his integrity. Memoranda were also issued to the respondent prior to the issuance of the aforesaid order regarding his integrity. A departmental inquiry was required to be initiated to come to the conclusion whether or not the respondent has committed any misconduct and whether he was a man of doubtful integrity.

10. Having mentioned in the order itself that the respondent is a man of doubtful integrity, the said order cannot but be interpreted as a punitive order. We find no reason to take a different view than what was taken by the learned Single Judge in that regard. However, so far the relief part is concerned, the learned Single Judge has held that the respondent has already crossed the normal age of superannuation and, therefore, there is no question for directing for his reinstatement. The respondent was, however, directed to be paid all his salary and allowances to which he would have been entitled to along with interest @ 8% per annum.

11. Considering the facts and circumstances of the case and also the fact that the respondent had no occasion to render any service to the appellant for the period during which he was out of service, we consider that payment of 50% of the salary and allowances would be appropriate and would meet the ends of justice.

12. While coming to the aforesaid conclusion, we get guidance from the ratio of the decision of the Supreme Court in Allahabad Jal Sansthan v. Daya Shankar Rai and Anr. . In the said decision, the Supreme Court has held thus:

16. We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement with full back wages was the usual result. But now with the passage of time, it has come to be realised that industry is being compelled to pay the workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed....

13. The said position was reiterated by the Supreme Court in M.L. Binjolkar v. State of M.P. , wherein the decision in Allahabad Jal Sansthan (supra) was followed.

14. Having held thus, we may also mention at this stage that while issuing notice on this appeal, a direction was issued that 50% of the amount covered by the impugned order would be deposited in this Court. On fulfillment of the aforesaid condition, a stay was granted to the operation of the impugned judgment and order. The said amount was ordered to be kept in a fixed deposit account.

15. Considering the facts and circumstances of the case, we uphold the order of the learned Single Judge to the effect that the order dated 20th August, 1987 is required to be set aside as it was punitive, which we hereby do. But we modify the consequential order passed by the learned Single Judge to the extent that the respondent shall be paid 50% of the salary and allowances to which he was entitled to. The same is deposited in this Court under orders of this Court. The aforesaid amount, which is deposited, shall be paid to the respondent. Any short fall, if any, shall also be paid within six weeks from today.

16. The appeal stands disposed of in terms of the aforesaid order.