V.K. Sharma vs State Farms Corporation Of India ...
2013 Latest Caselaw 5626 Del

*            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

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

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.

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

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

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

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

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

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

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).

12. Writ petition is therefore dismissed, leaving the parties to bear

their own costs.

DECEMBER 05 , 2013                             VALMIKI J. MEHTA, J.
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