Sh.R.B.Chauhan vs Food Corporation Of India & Anr
2009 Latest Caselaw 1559 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                            Date of decision : 21.04.2009


+                             LPA No.1076 of 2006


SH.R.B.CHAUHAN                                      ...APPELLANT

                           Through:     MR. SANJEEV JOSHI, ADV.

                                   Versus


FOOD CORPORATION OF INDIA & ANR                     ...RESPONDENTS

                           Through:     MR. VINOD KUMAR, ADV.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1.      Whether the Reporters of local papers
        may be allowed to see the judgment?         No

2.      To be referred to Reporter or not?          No

3.      Whether the judgment should be              No
        reported in the Digest?



SANJAY KISHAN KAUL, J. (Oral)

1. The appellant joined the Department of Food of Government of

India in the year 1960 and on formation of Food Corporation of

India ('FCI' for short), his services were transferred to it

in the year 1966. The appellant was working as an Assistant

Grade-I (Depot) when he was compulsorily retired from service

on 26/27.12.1988. The petitioner aggrieved by the said order

filed Civil Writ Petition No.3598/93 which has been dismissed

as per the impugned order dated 23.03.2006.

2. The first submission of learned counsel for the appellant is that

an officer who passed the order of compulsory retirement of

the appellant was not the competent authority. This plea is

predicated on the factual averment that the promotion of the

appellant to the post of an Assistant Grade-I (Depot) was

passed by the Zonal Manager while the order for compulsory

retirement has been passed by the Senior Regional Manager,

which is a lower authority. Learned counsel seeks to support

this contention on the basis of an order passed by the

Allahabad High Court in WP(C) 1391/1992 Makhan Singh v. FCI

on 03.03.1992. It was held in that case the Order of

compulsory retirement passed by the Senior Regional Manager

in respect of that petitioner who was holding the post of

Assistant Grade-II was not sustainable as the Senior Regional

Manager was lower in rank than the 'appointing authority' for

that post as per the FCI (Staff) Regulations, 1971 ('the

Regulations' for short).

3. The aforesaid aspect has been examined by the learned Single

Judge in para 12 of the impugned order. It has been found

that the 'appointing authority' for the post held by the

appellant was the originally the Zonal Manager but the

position changed on account of the amendment to the

Regulations effected from 16.10.1987 when the power was

conferred on the Senior Regional Manager. It was observed

that the appellant not being a public servant was not entitled

to invoke the protection under Article 311 of the constitution

of India. The learned Single Judge relied upon the

observations made by the Supreme Court in State Bank of

India v. S.Vijaya Kumar; AIR 1991 SC 79 and Satinder Singh

Arora v. State Bank of Patiala; 1992 (Supp.) 2 SCC 224 to

come to the conclusion that the imposition of penalty can be

considered valid even if the official is lower in rank than the

original authority who appointed him so long as it is

permissible in terms of the Regulations. We find no infirmity

with the said finding and take note of the fact that the

judgment in Makhan Singh v. FCI's case (supra) has not

examined the effect of the amendment to the Regulations.

This is material since it is as per the amendment that the

Senior Regional Manager acquired the powers which were

earlier vested with the Zonal Manager.

4. The second aspect urged by learned counsel for the appellant

is the absence of enquiry or charge sheet in respect of the

charges which formed the basis of premature retirement of the

appellant and thus the impugned order not being in

accordance with law as the record of the appellant was not

considered while passing the order of compulsory retirement.

5. Leaned Single Judge has considered Regulation 22 of the

Regulations in para 15 of the impugned order which permits

the appropriate authority an absolute right to pass an order of

compulsory retirement if in its opinion such an action is in the

interest of FCI. The learned Single Judge has thereafter

proceeded to consider various pronouncements of the

Supreme Court to conclude that an order of compulsory

retirement is not an order of punishment but should be based

on the material on record. Thus, an objective view of the

overall performance of the officer has to be taken into

account. In para 20 of the impugned order, the learned

Single Judge has noted that the records relating to the

appointment of the appellant had been produced where all the

relevant ACRs were considered and found that there were

several ACRs which could lead to a conclusion that the

appellant had outlived his utility for the respondent-

Corporation.

6. The appellant has faced five disciplinary proceedings apart

from the aspect of ACRs but two of them culminated in

imposition of penalties on the appellant.

7. In view of the aforesaid, we are of the view that the learned

Single Judge has rightly found the present case is not one of

absence of material or material not justifying a reasonable

inference that

8. the appellant's services ought not to be continued in public

interest.

9. There being no other aspect urged and there being absence of

infirmity in the reasoning adopted by learned Single Judge, we

see no reason to interfere in appeal.

10. Dismissed.

SANJAY KISHAN KAUL, J.

APRIL 21, 2009                                 SUDERSHAN KUMAR MISRA, J.
dm