Punjab-Haryana High Court
Mahavir Singh vs Food Corporation Of India And Others on 15 April, 2024
Neutral Citation No:=2024:PHHC:049972
CWP-7934-2024 and 1 2024:PHHC:049972
other connected case
124-9
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1) CWP-7934-2024
Date of Decision:15.04.2024
MAHAVIR SINGH ......... Petitioner
Versus
FOOD CORPORATION OF INDIA AND OTHERS ..... Respondents
2) CWP-7936-2024
HARDEV SINGH ....Petitioner
Versus
FOOD CORPORATION OF INDIA AND OTHERS ...Respondents
3) CWP-7961-2024
BALWINDER SINGH TEJA ....Petitioner
Versus
FOOD CORPORATION OF INDIA AND OTHERS ....Respondents
4) CWP-7973-2024
SUSHIL KUMAR BHATIA .....Petitioner
Versus
FOOD CORPORATION OF INDIA AND OTHERS ....Respondents
5) CWP-7981-2024
GURMAIL SINGH ....Petitioner
Versus
FOOD CORPORATION OF INDIA AND OTHERS .....Respondents
6) CWP-7985-2024
ATAM PARKASH ....Petitioner
Versus
FOOD CORPORATION OF INDIA AND OTHERS ...Respondents
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7) CWP-7988-2024
NARINDER SINGH ....Petitioner
Versus
FOOD CORPORATION OF INDIA AND OTHERS ....Respondents
8) CWP-7994-2024
SUKHJINDER SINGH .....Petitioner
Versus
FOOD CORPORATION OF INDIA AND OTHERS ....Respondents
9) CWP-7996-2024
ARUN KUMAR BANSAL ....Petitioner
Versus
FOOD CORPORATION OF INDIA AND OTHERS ....Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present : Mr. R.K. Malik, Sr. Advocate with
Mr. Samrat Malik, Advocate and
Mr. Sandeep Dhull, Advocate
for the petitioner.
Mr. Sunish Bindlish, Advocate
for the respondents-FCI.
****
JAGMOHAN BANSAL, J. (Oral)
1. By this common order CWP-7934-2024, CWP-7936-2024,
CWP-7961-2024, CWP-7973-2024, CWP-7981-2024, CWP-7985-2024,
CWP-7988-2024, CWP-7994-2024 and CWP-7996-2024 are hereby
disposed of since issues involved and prayers sought in captioned
petitions are common. With the consent of parties and for the sake of
brevity, facts are borrowed from CWP-7934-2024.
2. The petitioner through instant petition under Article 226 of
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the Constitution of India is seeking setting aside of order dated
11.07.2023 (Annexure P-1) whereby petitioner was prematurely retired
from service and orders dated 13.10.2023 (Annexure P-3) and 20.02.2024
(Annexure P-6) whereby representations of the petitioner have been
rejected.
3. The petitioner joined respondent-FCI as Category-III
employee. In the year 2023, he completed age of 53 years. The
respondent constituted a Special Review Committee to consider service
record of petitioner and other employees. The Committee formed an
opinion that petitioner in terms of Regulation 22 (2) of FCI Regulations,
1971 should be prematurely retired. He filed a representation against the
order of premature retirement which came to be dismissed by
Representation Committee. The order of premature retirement dated
11.07.2023 (Annexure P-1) and order dated 13.10.2023 (Annexure P-3)
rejecting representation is reproduced as below:
"Order dated 11.07.2023
"WHEREAS, the undersigned is of the opinion that, it is in
the interest of the Corporation and public interest in general
to retire Shri Mahabir Singh (DOB: 01.03.1971), Manager
(QC) presently posted working under Punjab Region from
the services of Food Corporation of India under Regulation
22 (2) of FCI (Staff) Regulations.
NOW THEREFORE, in exercise of the power conferred
under the aforesaid Regulations the undersigned hereby
retires Shri Mahabir Singh w.e.f. 11.07.2023 (A/N).
That in lieu of the notice period, Shri Mahabir Singh shall be
paid a sum equivalent to the amount of his pay and
allowance for a period of 3 (three) Months calculated at the
same rate at which he was supposed to be drawing them
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immediately before his retirement."
Order dated 13.10.2023
"WHEREAS, Shri Mahabir Singh, Ex-Manager (QC) was
retired from the services of Food Corporation of India under
Regulation 22(2) of FCI Staff Regulations 1971 in the
interest of the Corporation and public interest in general
vide Order No.-Zo (N)-27.0032/1/2023-E-1-ZO North
Dated: 11.07.2023.
WHEREAS, Shri Mahabir Singh, Ex-Manager (QC) had
made the Representation against the ibid order on dated
19.07.2023 which has been examined by the Representation
Committee.
NOW THEREFORE, in exercise of the powers conferred
under the aforesaid Regulations and after careful
consideration of representation of Shri Mahabir Singh and
perusal of Representation Committee Report, the
undersigned hereby rejects the representation of Shri
Mahabir Singh, Ex-Manager (QC)."
4. The petitioner and other similarly situated employees
preferred civil writ petitions and this Court vide judgment dated
22.12.2023 (Annexure P-4) rejected claim of those employees who were
not promoted within 5 years from the date of premature retirement,
however, directed respondent to re-consider case of those employees who
have been promoted within 5 years, in terms of Clause (iv) and (v) of
paragraph 10 of circular dated 09.07.2021 (Annexure P-7) issued by
respondent-FCI.
5. The petitioner filed representation dated 29.12.2023
(Annexure P-5) before Representation Committee seeking re-
consideration of his case. He pointed out that he has been promoted and
awarded outstanding grade in ACR after promotion, thus, it is unjustified
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to prematurely retire him. There are many employees who have been
subjected to multiple major and minor penalties, nevertheless, permitted
to continue.
6. The respondent constituted a Special Review Committee
which re-considered case of 15 employees who were promoted during
last 5 years from the date of order of their premature retirement. The said
Committee found that petitioners have not been promoted on merit
whereas they have been promoted on the basis of seniority-cum-fitness,
thus, as per circular dated 09.07.2021 (Annexure P-7), their entire service
record can be considered. Considering the entire service record, the said
Committee reiterated findings of earlier Special Review Committee. The
Executive Director (North Zone) in terms of report of Special Review
Committee passed impugned order dated 20.02.2024 (Annexure P-6)
whereby representation of the petitioner came to be rejected.
7. Mr. R.K. Malik, Senior Advocate submits that respondent
has not passed impugned order in the true spirit of order dated 22.12.2023
(Annexure P-4) passed by this Court in the earlier round of litigation. The
petitioner was promoted on 22.11.2005 from the post of Technical
Assistant-III to Technical Assistant-II. He, on 14.12.2018, was further
promoted from the post of T.A.-II to T.A.-I. On the basis of seniority-
cum-fitness, he was lastly promoted on 28.06.2020 to the post of
Manager (QC). No penalty was awarded after promotion. He was
subjected to minor penalties of recovery. All the penalties were imposed
on account of transit loss and as per instruction dated 12.02.2008
(Annexure P-8) issued by respondent, no recovery can be effected for
storage and transit loss. The respondent has permitted to continue persons
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named in the body of the petition as well as Annexure P-9 who had been
subjected to multiple penalties including major penalties. The respondent
has even reinstated those employees who did not approach this Court.
The respondent has settled issue with them but punished many officials
including petitioners.
8. Per contra, Mr. Sunish Bindlish, Advocate submits that
scope of interference by Courts in case of premature retirement is very
limited. This Court vide order dated 22.12.2023 (Annexure P-4) rejected
petition of those employees who were not promoted during last 5 years,
however, directed the authorities to consider case of those employees
who were promoted during last 5 years. The respondent has re-considered
claim of 15 employees who were promoted during last 5 years. It was
found that none of the officers was promoted on merit, thus, respondent
considered their entire service record. Nine employees at present are
before this Court and seven, out of them were subjected to penalty after
promotion. All the petitioners have been subjected to minor penalty on
multiple occasions and major penalty on one or another occasion. The
respondent was not supposed to pass a speaking order because it would
be stigmatic and order of premature retirement is not a stigmatic order.
There is no challenge to authority of respondent who has acted in a bona
fide manner and in the public interest.
9. I have heard the arguments of both sides and with the able
assistance of learned counsels perused the record.
10. Supreme Court in catena of judgments has laid down that if
order of compulsorily retirement casts stigma on the Government servant
means it contains statement casting aspersion on the conduct or character,
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the Court will treat the said order as an order of punishment attracting
provisions of Article 311 (2) of the Constitution of India. Simple order of
compulsory retirement cannot be regarded as an order of punishment. If
the statement in the order refers only to the assessment of his work and
does not at the same time cast aspersion on the conduct or character of
the employee, it would not be proper to hold that order of compulsory
retirement is an order of punishment. The authorities passing order of
premature retirement are not supposed to pass a speaking order. Pre-
mature retirement is prerogative of Government but it should be based on
material and has to be based on the subjective satisfaction of the
Government.
11. The object of compulsorily retirement of a Government
servant is to weed out the dead woods in order to maintain efficiency and
initiative in the service as well as to dispense with services of those
whose integrity is doubtful so as to preserve purity in the administration.
The Supreme Court in State of Gujarat Versus Umedbhai
M. Patel 2001 (3) SCC 314 has elaborated principles which ought to be
followed in the matters relating to compulsory retirement. The relevant
extracts of the judgment read as:
"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.
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(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
favour of the officer.
(viii) Compulsory retirement shall not be imposed as a
punitive measure."
In Allahabad Bank Officers' Assn. v. Allahabad Bank,
(1996) 4 SCC 504 Supreme Court has held that compulsory retirement of
a Government servant is one of the facets of the doctrine of pleasure
incorporated in Article 310 of the Constitution. In case of compulsory
retirement, there is no need to hold an inquiry. The authorities have to
record satisfaction to the effect that it is in the public interest to retire the
employee.
In Ram Ekbal Sharma Vs. State of Bihar and another 1990
(3) SCC 504 Supreme Court has observed that in order to find out
whether an order of compulsory retirement is based on any misconduct of
the Government servant or the said order has been passed acting bona
fide, without any oblique and extraneous purpose, the veil can be lifted
by Court.
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12. Before adverting with issues raised by petitioners, it would
be apposite to look at order dated 22.12.2023 (Annexure P-4) passed by
this Court in the first round of litigation. This Court considered circular
dated 09.07.2021 (Annexure P-7) vis-a-vis promotion of different
petitioners during last 5 years. The respondents were directed to re-
consider claim of the petitioners in the light of Clause (iv) of paragraph
10 of the aforesaid circular. The relevant extracts of order dated
22.12.2023 (Annexure P-4) are reproduced as below:
"15. In the light of Clause (iv) of paragraph 10 of the
circular dated 09.07.2021, case of the petitioners who have
been promoted during 5 years, preceding the date of their
pre-mature retirement, needs to be separately and
independently examined.
From the conjoint reading of Clause (iv) and (v) of
paragraph 10 of circular dated 09.07.2021, the following
position emerges:
(i) Ordinarily an employees shall not be
retired on the ground of ineffectiveness, if his
service during the preceding 5 years has been
found satisfactory.
(ii) Ordinarily an employee shall not be
retired on the ground of ineffectiveness, if he
has been promoted to a higher post during the
preceding 5 years and his service in the highest
post has been found satisfactory.
(iii) In case an employee is to be retired on
the ground of doubtful integrity, the principle of
satisfactory service of last 5 years would not be
applicable.
(iv) In case an employee has been promoted
during last 5 years on the ground of seniority-
cum-fitness, the previous entries in APAR may
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be taken into account. This would not be
applicable, if promotion was made on the basis
of merit.
(v) The Committee is empowered to consider
APAR, dossier, personal file of Corporation
employee, files dealt by him, any paper or
report prepared by him or un-communicated
remarks in APAR.
(vi) Internal Committee would put together all
the available data and prepare a comprehensive
brief for consideration by Review Committee.
16. A three Judge Bench of Supreme Court in State of
Orissa and others Vs. Ram Chandra Das (1996) 5 SCC 331,
has held that despite promotion of an employee, adverse
entries remain part of record for overall consideration to
pre-maturely retire a Government servant. The object is
public interest, thus, entries do not lose significance, even if
the Government servant has subsequently been promoted.
The relevant extracts of the judgment read as:
"Merely because a promotion has been given
even after adverse entries were made, cannot be
a ground to note that compulsory retirement of
the government servant could not be ordered.
The evidence does not become inadmissible or
irrelevant as opined by the Tribunal. What
would be relevant is whether upon that state of
record as a reasonable prudent man would the
Government or competent officer reach that
decision. We find that selfsame material after
promotion may not be taken into consideration
only to deny him further promotion, if any. But
that material undoubtedly would be available to
the Government to consider the overall
expediency or necessity to continue the
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government servant in service after he attained
the required length of service or qualified
period of service for pension. It is also made
clear that in this case adverse entries were
made only after promotion and not earlier to
promotion. Compulsory retirement is not a
punishment. He is entitled to all the pensionary
benefits."
The above view has been affirmed by Supreme Court in
its subsequent judgment in Pyare Mohan Lal Vs. State of
Jharkhand (2010) 10 SCC 693.
17. From the perusal of dossier which was put up before
the Reviewing Committee, the noting/opinion of Reviewing
Committee and Representation Committee, this Court finds
that Reviewing Committee has not taken care of mandate
and spirit of Clause IV of paragraph 10 of the circular dated
09.07.2021. It is settled law that circulars are not binding
upon the courts, however, department is bound by its
circulars. The circular dated 09.07.2021 was issued by FCI,
thus, it is precluded to argue contrary to circular and was
bound to meticulously follow the same.
In the dossier, the fact of promotion of employees in
preceding 5 years was noticed, however, this fact has not
been noticed either by Reviewing Committee or by
Representation Committee. This fact in the light of Clause
(iv) read with Clause (v) of paragraph 10 of circular dated
09.07.2021 needs to be considered, thus, the respondents are
directed to re-consider case of all those petitioners who were
promoted during 5 years preceding the date of premature
retirement. It is made clear that this order would not be
construed as reinstatement of the said employees. The
respondent as conceded, in the light of Clause (iv) and (v) of
paragraph 10 of aforesaid circular, would decide fate of
these petitioners within 8 weeks from today.
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The record of FCI after perusal stands returned to Mr.
Sunlish Bindlish, learned counsel for the respondent.
18. Disposed of in the above terms."
13. The respondent during the course of hearing produced record
of Special Review Committee which considered case of petitioners in
terms of aforesaid order of this Court. It is apt to mention here that
Minutes of Meeting of Special Review Committee have not been
supplied to petitioners. They have been supplied copy of order of
premature retirement passed by Executive Director which is based upon
opinion of Special Review Committee. The petitioners are bereft of
opinion of Special Review Committee. This Court has gone through
report of Special Review Committee and finds that said Committee has
considered factum of promotion of petitioners during last 5 years, scope
of circular dated 09.07.2021 (Annexure P-7) and status of similarly
situated employees. The Committee has formed an opinion that case of
286 employees was reviewed and 55 were ordered to be prematurely
retired. 210 were found fit and remaining had already retired or were on
the verge of retirement. The entire service record of petitioners was
considered and an opinion was formed that they cannot be permitted to
continue. They were not promoted on the basis of merit whereas they
were promoted on the basis of seniority-cum-fitness. The respondent
further submitted a chart disclosing that seven out of nine petitioners
have been subjected to penalty after their promotion. They have been
subjected to minor penalties on multiple occasions. Most of them have
even been subjected to major penalties.
14. A two Judge Bench of Supreme Court in 'Central Industrial
Security Force Vs. HC (GD) Om Prakash' 2022 LiveLaw (SC) 128 has
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held that for the purpose of premature retirement entire service record is
to be taken into consideration which would include ACRs of the period
prior to promotion. The order of premature retirement is based upon
entire service record, though recent reports may carry their own weight.
The Court while setting aside order passed by Division Bench of Delhi
High Court has observed that adverse remarks can be taken into
consideration as mentioned in numerous judgments. The relevant extracts
of the judgment read as:
"13. There are numerous other judgments upholding the
orders of premature retirement of judicial officers inter alia
on the ground that the judicial service is not akin to other
services. A person discharging judicial duties acts on behalf
of the State in discharge of its sovereign functions.
Dispensation of justice is not only an onerous duty but has
been considered as discharge of a pious duty, therefore, it is
a very serious matter. This Court in Ram Murti Yadav v.
State of Uttar Pradesh and Another, (2020) 1 SCC 801 held
as under:
"6. ....The scope for judicial review of an order of
compulsory retirement based on the subjective
satisfaction of the employer is extremely narrow and
restricted. Only if it is found to be based on arbitrary
or capricious grounds, vitiated by mala fides,
overlooks relevant materials, could there be limited
scope for interference. The court, in judicial review,
cannot sit in judgment over the same as an appellate
authority. Principles of natural justice have no
application in a case of compulsory retirement."
14. Thus, we find that the High Court has not only misread
the judgment of this Court in Baikuntha Nath Das but
wrongly applied the principles laid down therein. The
adverse remarks can be taken into consideration as
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mentioned in the number of judgments mentioned above.
There is also a factual error in the order of the High Court
that there are no adverse remarks and that the ACRs for the
year 1990 till the year 2009 were either good or very good.
In fact, the summary of ACRs as reproduced by the High
Court itself shows average, satisfactory and in fact below
average reports as well.
15. The entire service record is to be taken into
consideration which would include the ACRs of the period
prior to the promotion. The order of premature retirement is
required to be passed on the basis of entire service records,
though the recent reports would carry their own weight.
16. In view of the said fact, we find that the order of the High
Court setting aside the order of premature retirement is
clearly unsustainable and is set aside. The appeal is allowed.
The writ petition thus stands dismissed."
15. In the case in hand, the petitioners were concededly
promoted within last 5 years from the date of their premature retirement,
however, none of them was promoted on merit. They were promoted on
the basis of seniority-cum-fitness. They have been subjected to
punishment on multiple occasions. The respondent has considered their
entire service record and arrived at a conclusion that they should be
prematurely retired.
16. In view of above cited judgments, this Court cannot
substitute opinion of authorities unless and until there is mala fide or
violation of fundamental rights or any other statutory provisions on the
part of authorities. The petitioners have failed to point out mala fide on
the part of respondents or violation of fundamental rights or statutory
provisions, thus, this Court does not find it appropriate to substitute
opinion of authorities. The petitions being bereft of merit deserves to be
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dismissed and accordingly dismissed.
16. Before parting with the judgment, I would hasten to add that
respondent as duty bound shall consider case of all those employees who
are similarly situated especially who have been pointed out by petitioners
in the body of writ petition or Annexure P-9.
17. The record of Special Review Committee produced by
respondent is hereby returned to Mr. Sunish Bindlish, Advocate.
( JAGMOHAN BANSAL )
JUDGE
15.04.2024
Ali
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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