IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.12.2011 Coram: THE HONOURABLE MR.JUSTICE S.RAJESWARAN Writ Petition.No.34405 of 2007 and M.P.No.2 of 2007 C.Palaniswamy .. Petitioner vs. 1.Food Corporation of India Rep. By its Chairman/Managing Director, No.16-20, Barakhampalane, New Delhi – 110 001. 2.The Zonal Manager (South), Food Corporation of India, Zonal Office, Haddows Road, Chennai. .. Respondents This writ petition is filed for a writ of Certiorarified Mandamus, to call for the rcords of the 1st respondent dated 02.04.2004 made in file No.9(3)/96/E1 and also dated 02.07.1996 made in file lNo.9(2)/93/E1 and quash the said order of the first respondent dated 02.04.2004 and 02.07.1996 and consequently direct the respondent to consider the case of the petitioner for the purpose of payment of terminal benefits that he was in service till he attained the age of superannuation and to pay all the arrears of back wages, pension, gratuity, etc., taking into account that he was in service till he attain the age of superannuation. For Petitioner : Mr.J.Abishek for Mr.A.Jenasenan For Respondents: Mr.A.S.Thambuswamy ORDER This writ petition has been filed for issuance of writ of Certiorarified Mandamus, to call for the rcords of the 1st respondent dated 02.04.2004 made in file No.9(3)/96/E1 and also https://hcservices.ecourts.gov.in/hcservices/ dated 02.07.1996 made in file lNo.9(2)/93/E1 and quash the said order of the first respondent dated 02.04.2004 and 02.07.1996 and consequently direct the respondent to consider the case of the petitioner for the purpose of payment of terminal benefits that he was in service till he attained the age of superannuation and to pay all the arrears of back wages, pension, gratuity, etc., taking into account that he was in service till he attain the age of superannuation. 2. The case of the petitioner as given in the affidavit filed in support of the writ petition is as follows: The petitioner was selected and appointed as Deputy General Manager in 1998 in the respondent Corporation and he wa sposted in various places. A minor punishment was imposed on the petitioner on 26.06.1994 for a lapse said to have taken place in 1988 and a penalty of stoppage of one increment for two years without cumulative effect with effect from 01.01.1995 was imposed. An appeal was filed by the petitioner to the first respondent against the minor punishment and the first respondent by order dated 19.05.1999 set aside the penalty imposed by the disciplinary authority. Therefore the entire career of the petitioner right from 1997 when he was recruited as Assistant Manager of Food Corporation of India till his retirement, no punishment, even a minor punishment was imposed on the petitioner. 3. While so, to the shock and surprise of the petitioner, the first respondent by order dated 02.07.1996 compulsorily retired the petitioner from service of the Corporation. As already stated when the order was passed compulsorily retiring the petitioner, there was a punishment imposed upon the petitioner on 26.07.1994 imposing a minor penalty of stoppage of one increment and at the time of passing the order dated 02.07.1996, the appeal was pending before the first respondent against the imposition of said penalty. Aggrieved against the order of compulsory retirement dated 02.07.1996, the petitioner filed a writ petition in W.P.No.9993 of 1996 for quashing the said order and for consequential restoration of the petitioner as the Deputy General Manager and grant all the attendant benefits. This Court on 22.10.2003, after finding that even the minor penalty of stoppage of increment for two years was not in force as on that date and no other past records requiring the petitioner to be compulsorily retired were produced before the Court, directed the petitioner to make a detailed representation to the first respondent. The petitioner was also given the liberty to bring to the notice of the first respondent about the subsequent order of the Appellate Authority in setting aside the only punishment of stoppage of increment imposed on the petitioner. The https://hcservices.ecourts.gov.in/hcservices/ first respondent was directed to consider the same on merits and pass orders in accordance with law. Accordingly, the petitioner made a representation on 15.11.2003 but, the first respondent rejected the appeal submitted by the petitioner on 02.04.2004. Challenging the said order dated 02.04.2004, the petitioner filed a contempt petition to punish the respondent for disobeying the orders of the Court dated 22.10.2003. But, this Court by order dated 05.04.2007, held that by the subsequent order dated 02.04.2004, direction issued by the Court in the said writ petition has been complied with and therefore, there was no conempt. However, this Court observed that the dismissal of the contempt petition would not stand in the way of the petitioner to question the said order dated 02.04.2004 on all available grounds. Therefore, this writ petition has been filed challenging the said order dated 02.04.2004 and the order of the Appellate Authority dated 02.07.1996. 4. The respondent has entered appearance through counsel and filed a counter wherein they have stated as follows: The petitioner while he was working as a District Manager, Food Corporation of India, North Lakshmipuri during 1988-89, was found wanting in his conduct and violated the conduct regulations by passing the transportation bill of one Sri.Pulin Bara, the transport contractor at the rate of Rs.14.50 per M.T./km instead of Rs.4.50 per M.T/km for a total amount of Rs.3,46,129.05/- and allowed payment of excess amount of Rs.2,36,979.69/-. Although it is a serious misconduct on the part of the petitioner, the management taking a lenient view, imposed a minor penalty of stoppage of one increment for two years without cumulative effect from 01.01.1995 by an order dated 26.07.1994. On appeal, the first respondent set aside the said order of penalty taking into account the subsequent recovery from the Contractor. By the order dated 02.07.1996, the petitioner was compulsorily retired under Regulation 22(2) of Food Corporation of India (Staff) Regulations, 1971 and this order of retirement is legally valid and sustainable as it has been done in the interest of the Corporation. Further, the Corporation has the right to retire an employee after he has attained the age of 50 years and after giving the employee three months notice in writing or three months pay and allowance in lieu of such notice. Referring to Regulation 22(2), it was stated that the order of compulsory retirement passed by the respondents cannot be found fault with. 5. Further, the respondent submits that in the meeting held on 06.06.1996 and 26.06.1996, the Review committee consisting of the Managing Director, Executive Director (Per), Executive Director https://hcservices.ecourts.gov.in/hcservices/ (Vigilance) have reviewed the case of 182 category-I officers, who have completed 50 years of age during the period 01.07.1992 to 30.06.1993. That committee after examining the records and assessing the performance of the petitioner came to the conclusion that the petitioner was not fit to continue in the service of the Corporation and hence they have decided to retire him compulsorily. Even in another such Review Committee Meeting held earlier, an order of compulsory retirement was passed against one Thiru.Ramakrishnan, Deputy Manager. Therefore, it is not a single case of the petitioner alone and the petitioner has not been singled out for premature retirement. Since the guideline has been followed in this regard, there is no illegality or arbitrariness in the order passed by the respondent Corporation. The representation dated 10.07.1996 submitted by the petitioner against his premature retirement under Regulation 22(2) of Food Corporation of India (Staff) Regulations, 1971 issued on 02.07.1997 placed before the appropriate committee. The committee in its meeting held on 29.10.1996 took note of the fact that the petitioner has filed a writ petition in this Court, after availing the alternative remedy of filing an appeal. Therefore, there is no infirmity or illegality in the order passed by the Appellate Authority and the consequent order of the first respondent. Hence, they prayed for the dismissal of the writ petition. 6. I have heard the learned counsel appearing for the writ petitioner and the learned counsel appearing for the respondents. I have also gone through the documents available on record including the counter affidavit filed by the respondent Corporation. 7. The learned counsel for the petitioner has referred to the earlier order passed by this Court in W.P.No.9993 of 1996 and submitted that the order impugned in the present writ petition has been passed by strictly following the directions given by this Court in the earlier writ petition. 8. The learned counsel further pointed out that this Court in the earlier writ petition held that even the only ground that was available for the Corporation i.e., the minor punishment of stoppage of increment for two years was later on set aside and therefore there is absolutely no ground at all for compulsorily retiring the petitioner. Therefore, according to him even though contempt has not been made, still the impugned order is liable to be set aside, as the same has been passed in total violation of the earlier order passed by this Court. In support of his submission, he relied on the following judgments: https://hcservices.ecourts.gov.in/hcservices/ 1.1984 (Supp) SCC 221 (Baldev Raj, Ex-Constable vs. State of Punjab and others) 2.1999 (4) SCC 235 (Rajat Baran Roy and others vs. State of West Bengal and others) and 3.2005 (9) SCC 748 (Pritam Singh vs. Union of India and others) 9. Per contra, while supporting the order of compulsory retirement passed against the petitioner, the learned counsel for the respondents relied on the following judgments: 1.1970 SC 284 (Union of India vs. Col.J.N.Sinha and another) 2.1970 SC 514 (R.L.Butail vs. Union of India and others) 3.1993 (2) LLJ 866 (Post & Telegraph Board and others vs. C.S.N.Murthy ) 4.1992 (2) SCC 299 (Baikuntha Nath Das and another vs. Chief District Medical Officer, Baripada and another) 5.2009 (5) SCC 732 (National Aviation Company of India Limited vs. S.M.K.Khan) 6.2010 (10) SCC 693 (Pyare Mohan Lal vs. State of Jharkhand and others) 10. The facts are not in dispute. By the order dated 02.07.1996, the petitioner was to compulsorily retire from the post of Deputy General Manager and the said order was passed in the interest of the public and also in exercise of the powers conferred by Regulation 22(2) of the Food Corporation of India (Staff) Regulations, 1971. This was challenged by the petitioner in W.P.No.9993 of 1996 and the said writ petition was disposed off by this Court on 22.10.2003. In the order dated 22.10.2003, the learned Judge held as follows: "17. In view of the above factual position, it must be construed that the petitioner was compulsorily retired only on the ground that he has caused loss to the Corporation for which an enquiry was conducted and was imposed penalty of stoppage of increment for two years. Though an argument was advanced that an isolated instance of punishment cannot be a ground, I am not inclined to go into that question for the simple reason, that the said punishment also was subsequently set aside by the appellate authority. Since the only ground that was available for the respondent, namely the minor penalty of stoppage of increment for two years, is https://hcservices.ecourts.gov.in/hcservices/ no more in force as on today and no other past records requiring the petitioner to be compulsorily retired were produced before this Court, it would be proper to direct the matter to the Chairman for re- consideration. In this regard, my attention was also drawn on 10.07.1996, though prior to the order of the appellate authority. 18. In this view of the matter, the writ petition is disposed of with the above findings directing the petitioner to make a detailed representation to the Chairman of the respondent, Food Corporation of India within a period of 15 days from the date of receipt of a copy of this order. The petitioner is also at liberty to bring to the notice of the Chairman as to the subsequent order of the appellate authority in setting aside the only punishment of stoppage of increment imposed on the petitioner subsequent to the order of compulsory retirement. In the event such representation is made as directed, the Chairman of the respondent Corporation is directed to consider the same on merits and duly taking into consideration of the fact that the only punishment, which was relied upon in the impugned order of the compulsory retirement is not in force as on today. Such order should be passed within a period of six months from the date of receipt of a copy of representation from the petitioner. The petitioner is also directed to enclose the copy of this order along with the representation. No costs. 11. From the above judgment, it is very clear that even before the learned Judge in the previous writ petition, no records were produced justifying the action of retiring the petitioner compulsorily. Therefore, the learned Judge felt that the only ground that could be sustained for passing the previous impugned order was against the punishment suffered by the petitioner. Even the minor punishment suffered by the petitioner was later on set aside by the authority, the learned Judge directed the petitioner to submit a representation to the Chairman of the Corporation and the Chairman of the Corporation was directed to consider the representation on merits and also duly taking into consideration of the fact that the only punishment which was relied on in the impugned order of compulsory retirement was not in force. https://hcservices.ecourts.gov.in/hcservices/ 12. The petitioner submitted a representation as per the orders of this Court dated 22.10.2003 and by the proceedings impugned in the petition dated 02.04.2004, the Chairman passed the order agreeing with the conclusion of the Committee and rejecting the appeal submitted by the petitioner. Aggrieved by the order dated 02.04.2004, the petitioner filed a contempt petition in Cont.P.No.9654 of 2004 before the very same learned Judge who disposed of the W.P.No.9993 of 1996. The learned Judge was satisfied that by the subsequent order dated 02.04.2004, the direction issued by the same Judge in that writ petition was complied with and therefore, no contempt was committed by them. While dismissing the contempt petition, the learned Judge observed that the dismissal of the writ petition shall not stand in the way of the writ petitioner to question the said order dated 02.04.2004 on al available grounds. Thereafter, this writ petition has been filed assailing the order dated 02.04.2004. 13. A perusal of the order dated 02.04.2004 shows that the Committee examined the relevant records and found that it cannot be presumed that the decision of the Review Committee was based on any penalty order. It was only after deliberations and assessment of the performance of the officer, taking into account the prescribed guidelines that the Committee arrived at the conclusion that the petitioner is not fit to continue in the service of Corporation and decided to retire him prematuredly in the impugned order, it was further stated that extent of a penalty order against the officer had no bearing on the decision of the Review Committee as the review was done after two years of issuance of the subject penalty order. The sum and substance of the impugned order is that after careful examination of the representations and all the related records of the case, the Committee after due deliberations again reached at a conclusion that there is no merit in the contentions made by the writ petitioner that calls for a review of the decision of the Review Committee. The Chairman of the Corporation concurred with the conclusion of the Committee and thus rejected the appeal. 14. From the impugned order, now it is very clear that the petitioner was retired compulsorily not on the ground of suffering any penalty, but, on the ground that the petitioner was not fit to continue in the services of the Corporation. For arriving at this subjective satisfaction, it was stated in the impugned proceedings that the Committee reached at this conclusion only after examining all the related records of the case carefully. 15. If the respondents contend that the petitioner has been retired compulsorily, as the petitioner is not fit to continue in https://hcservices.ecourts.gov.in/hcservices/ the services of the Corporation, then, it is needless to mention here that the respondent should produce relevant records before this Hon'ble Court to justify the subjective satisfaction that has been arrived at by the Committee to come to the conclusion that the petitioner is not fit. If it is not done and if it is done and the records were otherwise, then, certainly this Court can interfere with the order passed as not producing the records or if produced, the records showing otherwise is certainly a ground which could be pressed into service to assail the order of compulsory retirement. 16. When the learned counsel for the Corporation was directed by this Court to produce the relevant records and time was also granted to do so, the learned counsel for the Corporation was not in a position to produce the records and thus, the facts remained that the relevant records which had been gone into by the Committee to have subjective satisfaction were not at all produced before this Court. 17. If that being so, in the absence of any other adverse interpretation, the impugned order passed by the respondents cannot be sustained and the same has been passed arbitrarily and therefore, this court can certainly interfere with the same. 18. Now, let me consider the decisions relied on by both the learned counsel in support of their contentions. 19. In 1984 (Supp) SCC 221 (cited supra), the Hon'ble Supreme Court observed as follows: "7. Mr. S.K. Bagga, learned Counsel for the respondents urged that the appellant was compulsorily retired in public interest. Public interest is an unruly horse and once it is alleged that the order was a device to circumvent the decision of this Court, it was obligatory upon the respondents to explain why it became necessary to retire the appellant in public Interest. It is true that dead wood has to be weeded out but that itself should not become a cloak to wreak vengeance. The officer who passed the order of compulsory retirement has not filed his counter-affidavit explaining the circumstances in which he considered it in public interest to compulsorily retire the appellant. Mr. S.S. Bains, who has filed the counter-affidavit claims to have no knowledge of the circumstances which necessitated compulsory retirement of the appellant. It is in this https://hcservices.ecourts.gov.in/hcservices/ background and keeping in view the fact that while the appellant was reinstated on February 11, 1980 in the forenoon, on the same day in the afternoon he was compulsorily retired from service. In effect the decision to reinstate was taken simultaneously with the decision to retire him. It is in the backdrop of these facts which left us agitated that we called upon the respondents to disclose the file in which administrative decision was taken. It may be mentioned that no privilege is claimed. The file is not shown on the specious plea that no such file is maintained. It is conceded in para 5 of the counter affidavit that no annual confidential reports are maintained in the case of constables. This left us completely guessing as to what must have weighed with the competent authority to pass the impugned order of retirement which is a bald order merely reciting the words of the relevant rule. The order of compulsory retirement affects the livelihood of the person in whose respect the order is made and it cannot be left to the guess work to decide what prompted the making of such an order. We are disinclined to accept the submission that no file was maintained. In the absence of any record and the annual confidential reports, it must be confessed that there was no material before the competent authority to pass the impugned order. When in view of the judgment of this Court, it became obligatory to reinstate the appellant in service, the power to order compulsory retirement was exercized not in public interest but to make a pretence of reinstatement and to get rid of the appellant. The High Court, in our opinion, was clearly in error in dismissing such a petition in limine. Accordingly, this appeal succeeds and is allowed and the order of compulsorily retiring the appellant from service dated February 11, 1980 is quashed and set aside. If the appellant has not reached the age of superannuation, he must be reinstated in service. If he had reached the age of superannuation, he should be paid the salary, wages and other terminal benefits for the period February 1, 1980 till the date of his superannuation. The respondents shall pay the costs of the appellant quantified at Rs. 1,000/-." https://hcservices.ecourts.gov.in/hcservices/ 20. In 1999 (4) SCC 235 (cited supra), the Hon'ble Supreme Court observed as under: "15. We will now examine the contention of the respondents that the impugned orders can be independently justified in view of the power vested in them by virtue of Rule 75(aa) of the West Bengal Service Rules, Part- I. The said Rule reads thus : "Notwithstanding anything contained in this Rule the appointing authority shall, if it is of opinion that it is in the public interest so to do, have the absolute right to retire a government employee 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 (erstwhile gazetted) service of post and had entered government service before attaining the age of 35 years, if he has attained the age of 50 years and (ii) In all other cases after he has attained the age of 55 years." 16. A perusal of this Rule shows that this Rule can be invoked for the purpose of retiring a Government servant in "public interest" on satisfying the conditions mentioned in sub-clauses (1) and (2) of that Rule. A careful perusal of the impugned orders nowhere shows that the said orders are being issued in "public interest" which is a condition precedent for invoking this Rule. Nor does it advert anywhere in the impugned orders in regard to the conditions specified in sub-paras (1) and (2) of the said Rule. If we have to examine the impugned orders in the light of this Rule then the same has to be held to be bad in law for non-application of mind and want of material particulars which are mandatory for invoking the said Rule. Therefore, the argument of the respondents seeking to justify the impugned orders based on Rule 75(aa) of the said Rules also has to be rejected." 21. It is pointed out by the learned counsel for the petitioner that Rule 75(aa) of the Bengal Services Rule Part-I is similar and identical to Regulation 22(2) of FCI (Staff) Regulations, 1971. 22. In 2005 (9) SCC 748 (cited supra), the Hon'ble Supreme Court observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "15. We are of the opinion that the instant case is a glaring example of abuse of discretionary power of the Disciplinary Authority as the punishment of compulsory retirement imposed on the appellant, who has put in 31 years of long service, only because he has supplied the details of absentation to one of the employees, which was neither confidential nor a privileged document. In any event, the appellant bonafide believed that he was right in furnishing the details which the employee had right to ask for. In our opinion, this is a fit case where the High Court and the Tribunal should have held that the punishment imposed is vitiated on account of the disproportionality. 16. This Court in the case of Union of India and Anr. vs. G. Ganayutham, (1997) 7 SCC 463 while examining the scope of judicial review held that "reasonableness", "rationality" and "proportionality" are the grounds on the basis of which judicial review of the administrative order can be undertaken. Considering the facts extracted herein before, we find that the