C.Palaniswamy v. Food Corporation of India

first respondent was directed to consider the same on merits andpass orders in accordance with law. Accordingly, the petitionermade a representation on 15.11.2003 but, the first respondentrejected the appeal submitted by the petitioner on 02.04.2004.Challenging the said order dated 02.04.2004, the petitioner filed acontempt petition to punish the respondent for disobeying theorders of the Court dated 22.10.2003. But, this Court by orderdated 05.04.2007, held that by the subsequent order dated02.04.2004, direction issued by the Court in the said writ petitionhas been complied with and therefore, there was no conempt.However, this Court observed that the dismissal of the contemptpetition would not stand in the way of the petitioner to questionthe said order dated 02.04.2004 on all available grounds.Therefore, this writ petition has been filed challenging the saidorder dated 02.04.2004 and the order of the Appellate Authoritydated 02.07.1996.4. The respondent has entered appearance through counsel andfiled 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, wasfound wanting in his conduct and violated the conduct regulationsby passing the transportation bill of one Sri.Pulin Bara, thetransport contractor at the rate of Rs.14.50 per M.T./km instead ofRs.4.50 per M.T/km for a total amount of Rs.3,46,129.05/- andallowed payment of excess amount of Rs.2,36,979.69/-. Although itis a serious misconduct on the part of the petitioner, themanagement taking a lenient view, imposed a minor penalty ofstoppage of one increment for two years without cumulative effectfrom 01.01.1995 by an order dated 26.07.1994. On appeal, the firstrespondent set aside the said order of penalty taking into accountthe subsequent recovery from the Contractor. By the order dated02.07.1996, the petitioner was compulsorily retired underRegulation 22(2) of Food Corporation of India (Staff) Regulations,1971 and this order of retirement is legally valid and sustainableas it has been done in the interest of the Corporation. Further,the Corporation has the right to retire an employee after he hasattained the age of 50 years and after giving the employee threemonths notice in writing or three months pay and allowance in lieuof such notice. Referring to Regulation 22(2), it was stated thatthe order of compulsory retirement passed by the respondents cannotbe found fault with.5. Further, the respondent submits that in the meeting held on06.06.1996 and 26.06.1996, the Review committee consisting of theManaging Director, Executive Director (Per), Executive Director https://hcservices.ecourts.gov.in/hcservices/ (Vigilance) have reviewed the case of 182 category-I officers, whohave completed 50 years of age during the period 01.07.1992 to30.06.1993. That committee after examining the records andassessing the performance of the petitioner came to the conclusionthat the petitioner was not fit to continue in the service of theCorporation and hence they have decided to retire him compulsorily.Even in another such Review Committee Meeting held earlier, anorder of compulsory retirement was passed against oneThiru.Ramakrishnan, Deputy Manager. Therefore, it is not a singlecase of the petitioner alone and the petitioner has not beensingled out for premature retirement. Since the guideline has beenfollowed in this regard, there is no illegality or arbitrariness inthe order passed by the respondent Corporation. The representationdated 10.07.1996 submitted by the petitioner against his prematureretirement under Regulation 22(2) of Food Corporation of India(Staff) Regulations, 1971 issued on 02.07.1997 placed before theappropriate committee. The committee in its meeting held on29.10.1996 took note of the fact that the petitioner has filed awrit petition in this Court, after availing the alternative remedyof filing an appeal. Therefore, there is no infirmity orillegality in the order passed by the Appellate Authority and theconsequent order of the first respondent. Hence, they prayed forthe dismissal of the writ petition.6. I have heard the learned counsel appearing for the writpetitioner and the learned counsel appearing for the respondents.I have also gone through the documents available on recordincluding the counter affidavit filed by the respondentCorporation.7. The learned counsel for the petitioner has referred to theearlier order passed by this Court in W.P.No.9993 of 1996 andsubmitted that the order impugned in the present writ petition hasbeen passed by strictly following the directions given by thisCourt in the earlier writ petition.8. The learned counsel further pointed out that this Court inthe earlier writ petition held that even the only ground that wasavailable for the Corporation i.e., the minor punishment ofstoppage of increment for two years was later on set aside andtherefore there is absolutely no ground at all for compulsorilyretiring the petitioner. Therefore, according to him even thoughcontempt has not been made, still the impugned order is liable tobe set aside, as the same has been passed in total violation of theearlier 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 Indiaand others)9. Per contra, while supporting the order of compulsoryretirement passed against the petitioner, the learned counsel forthe respondents relied on the following judgments:1.1970 SC 284 (Union of India vs. Col.J.N.Sinha andanother)2.1970 SC 514 (R.L.Butail vs. Union of India andothers) 3.1993 (2) LLJ 866 (Post & Telegraph Board andothers vs. C.S.N.Murthy )4.1992 (2) SCC 299 (Baikuntha Nath Das and anothervs. Chief District Medical Officer, Baripada andanother)5.2009 (5) SCC 732 (National Aviation Company ofIndia Limited vs. S.M.K.Khan)6.2010 (10) SCC 693 (Pyare Mohan Lal vs. State ofJharkhand and others)10. The facts are not in dispute. By the order dated02.07.1996, the petitioner was to compulsorily retire from the postof Deputy General Manager and the said order was passed in theinterest of the public and also in exercise of the powers conferredby Regulation 22(2) of the Food Corporation of India (Staff)Regulations, 1971. This was challenged by the petitioner inW.P.No.9993 of 1996 and the said writ petition was disposed off bythis Court on 22.10.2003. In the order dated 22.10.2003, thelearned Judge held as follows:"17. In view of the above factual position, itmust be construed that the petitioner wascompulsorily retired only on the ground that he hascaused loss to the Corporation for which an enquirywas conducted and was imposed penalty of stoppage ofincrement for two years. Though an argument wasadvanced that an isolated instance of punishmentcannot be a ground, I am not inclined to go intothat question for the simple reason, that the saidpunishment also was subsequently set aside by theappellate authority. Since the only ground that wasavailable for the respondent, namely the minorpenalty of stoppage of increment for two years, is https://hcservices.ecourts.gov.in/hcservices/ no more in force as on today and no other pastrecords requiring the petitioner to be compulsorilyretired were produced before this Court, it would beproper to direct the matter to the Chairman for re-consideration. In this regard, my attention wasalso drawn on 10.07.1996, though prior to the orderof the appellate authority.18. In this view of the matter, the writpetition is disposed of with the above findingsdirecting the petitioner to make a detailedrepresentation to the Chairman of the respondent,Food Corporation of India within a period of 15 daysfrom the date of receipt of a copy of this order.The petitioner is also at liberty to bring to thenotice of the Chairman as to the subsequent order ofthe appellate authority in setting aside the onlypunishment of stoppage of increment imposed on thepetitioner subsequent to the order of compulsoryretirement. In the event such representation ismade as directed, the Chairman of the respondentCorporation is directed to consider the same onmerits and duly taking into consideration of thefact that the only punishment, which was relied uponin the impugned order of the compulsory retirementis not in force as on today. Such order should bepassed within a period of six months from the dateof receipt of a copy of representation from thepetitioner. The petitioner is also directed toenclose the copy of this order along with therepresentation. No costs.11. From the above judgment, it is very clear that even beforethe learned Judge in the previous writ petition, no records wereproduced justifying the action of retiring the petitionercompulsorily. Therefore, the learned Judge felt that the onlyground that could be sustained for passing the previous impugnedorder was against the punishment suffered by the petitioner. Eventhe minor punishment suffered by the petitioner was later on setaside by the authority, the learned Judge directed the petitionerto submit a representation to the Chairman of the Corporation andthe Chairman of the Corporation was directed to consider therepresentation on merits and also duly taking into consideration ofthe fact that the only punishment which was relied on in theimpugned order of compulsory retirement was not in force. https://hcservices.ecourts.gov.in/hcservices/

12. The petitioner submitted a representation as per theorders of this Court dated 22.10.2003 and by the proceedingsimpugned in the petition dated 02.04.2004, the Chairman passed theorder agreeing with the conclusion of the Committee and rejectingthe appeal submitted by the petitioner. Aggrieved by the orderdated 02.04.2004, the petitioner filed a contempt petition inCont.P.No.9654 of 2004 before the very same learned Judge whodisposed of the W.P.No.9993 of 1996. The learned Judge wassatisfied that by the subsequent order dated 02.04.2004, thedirection issued by the same Judge in that writ petition wascomplied with and therefore, no contempt was committed by them.While dismissing the contempt petition, the learned Judge observedthat the dismissal of the writ petition shall not stand in the wayof the writ petitioner to question the said order dated 02.04.2004on al available grounds. Thereafter, this writ petition has beenfiled assailing the order dated 02.04.2004. 13. A perusal of the order dated 02.04.2004 shows that theCommittee examined the relevant records and found that it cannot bepresumed that the decision of the Review Committee was based on anypenalty order. It was only after deliberations and assessment ofthe performance of the officer, taking into account the prescribedguidelines that the Committee arrived at the conclusion that thepetitioner is not fit to continue in the service of Corporation anddecided to retire him prematuredly in the impugned order, it wasfurther stated that extent of a penalty order against the officerhad no bearing on the decision of the Review Committee as thereview was done after two years of issuance of the subject penaltyorder. The sum and substance of the impugned order is that aftercareful examination of the representations and all the relatedrecords of the case, the Committee after due deliberations againreached at a conclusion that there is no merit in the contentionsmade by the writ petitioner that calls for a review of the decisionof the Review Committee. The Chairman of the Corporation concurredwith the conclusion of the Committee and thus rejected the appeal.14. From the impugned order, now it is very clear that thepetitioner was retired compulsorily not on the ground of sufferingany penalty, but, on the ground that the petitioner was not fit tocontinue in the services of the Corporation. For arriving at thissubjective satisfaction, it was stated in the impugned proceedingsthat the Committee reached at this conclusion only after examiningall the related records of the case carefully.15. If the respondents contend that the petitioner has beenretired 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 mentionhere that the respondent should produce relevant records beforethis Hon'ble Court to justify the subjective satisfaction that hasbeen arrived at by the Committee to come to the conclusion that thepetitioner is not fit. If it is not done and if it is done and therecords were otherwise, then, certainly this Court can interferewith the order passed as not producing the records or if produced,the records showing otherwise is certainly a ground which could bepressed into service to assail the order of compulsory retirement.16. When the learned counsel for the Corporation was directedby this Court to produce the relevant records and time was alsogranted to do so, the learned counsel for the Corporation was notin a position to produce the records and thus, the facts remainedthat the relevant records which had been gone into by the Committeeto have subjective satisfaction were not at all produced beforethis Court.17. If that being so, in the absence of any other adverseinterpretation, the impugned order passed by the respondents cannotbe sustained and the same has been passed arbitrarily andtherefore, this court can certainly interfere with the same.18. Now, let me consider the decisions relied on by both thelearned counsel in support of their contentions.19. In 1984 (Supp) SCC 221 (cited supra), the Hon'ble SupremeCourt observed as follows: "7. Mr. S.K. Bagga, learned Counsel for therespondents urged that the appellant wascompulsorily retired in public interest. Publicinterest is an unruly horse and once it is allegedthat the order was a device to circumvent thedecision of this Court, it was obligatory upon therespondents to explain why it became necessary toretire the appellant in public Interest. It is truethat dead wood has to be weeded out but that itselfshould not become a cloak to wreak vengeance. Theofficer who passed the order of compulsoryretirement has not filed his counter-affidavitexplaining the circumstances in which he consideredit in public interest to compulsorily retire theappellant. Mr. S.S. Bains, who has filed thecounter-affidavit claims to have no knowledge of thecircumstances which necessitated compulsoryretirement of the appellant. It is in this https://hcservices.ecourts.gov.in/hcservices/ background and keeping in view the fact that whilethe appellant was reinstated on February 11, 1980 inthe forenoon, on the same day in the afternoon hewas compulsorily retired from service. In effect thedecision to reinstate was taken simultaneously withthe decision to retire him. It is in the backdrop ofthese facts which left us agitated that we calledupon the respondents to disclose the file in whichadministrative decision was taken. It may bementioned that no privilege is claimed. The file isnot shown on the specious plea that no such file ismaintained. It is conceded in para 5 of the counteraffidavit that no annual confidential reports aremaintained in the case of constables. This left uscompletely guessing as to what must have weighedwith the competent authority to pass the impugnedorder of retirement which is a bald order merelyreciting the words of the relevant rule. The orderof compulsory retirement affects the livelihood ofthe person in whose respect the order is made and itcannot be left to the guess work to decide whatprompted the making of such an order. We aredisinclined to accept the submission that no filewas maintained. In the absence of any record and theannual confidential reports, it must be confessedthat there was no material before the competentauthority to pass the impugned order. When in viewof the judgment of this Court, it became obligatoryto reinstate the appellant in service, the power toorder compulsory retirement was exercized not inpublic interest but to make a pretence ofreinstatement and to get rid of the appellant. TheHigh Court, in our opinion, was clearly in error indismissing such a petition in limine. Accordingly,this appeal succeeds and is allowed and the order ofcompulsorily retiring the appellant from servicedated February 11, 1980 is quashed and set aside. Ifthe appellant has not reached the age ofsuperannuation, he must be reinstated in service. Ifhe had reached the age of superannuation, he shouldbe paid the salary, wages and other terminalbenefits for the period February 1, 1980 till thedate of his superannuation. The respondents shallpay 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 SupremeCourt observed as under:"15. We will now examine the contention of therespondents that the impugned orders can beindependently justified in view of the power vestedin them by virtue of Rule 75(aa) of the West BengalService Rules, Part- I. The said Rule reads thus :"Notwithstanding anything contained in this Rulethe appointing authority shall, if it is of opinionthat it is in the public interest so to do, have theabsolute right to retire a government employee bygiving him notice of not less than three months inwriting or three months' pay and allowances in lieuof such notice -(i) If he is in Group-A or Group-B (erstwhilegazetted) service of post and had entered governmentservice before attaining the age of 35 years, if hehas attained the age of 50 years and (ii) In all other cases after he has attainedthe age of 55 years."16. A perusal of this Rule shows that this Rulecan be invoked for the purpose of retiring aGovernment servant in "public interest" onsatisfying the conditions mentioned in sub-clauses(1) and (2) of that Rule. A careful perusal of theimpugned orders nowhere shows that the said ordersare being issued in "public interest" which is acondition precedent for invoking this Rule. Nor doesit advert anywhere in the impugned orders in regardto the conditions specified in sub-paras (1) and (2)of the said Rule. If we have to examine the impugnedorders in the light of this Rule then the same hasto be held to be bad in law for non-application ofmind and want of material particulars which aremandatory for invoking the said Rule. Therefore, theargument of the respondents seeking to justify theimpugned orders based on Rule 75(aa) of the saidRules also has to be rejected."21. It is pointed out by the learned counsel for thepetitioner that Rule 75(aa) of the Bengal Services Rule Part-I issimilar and identical to Regulation 22(2) of FCI (Staff)Regulations, 1971.22. In 2005 (9) SCC 748 (cited supra), the Hon'ble SupremeCourt observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "15. We are of the opinion that the instant caseis a glaring example of abuse of discretionary powerof the Disciplinary Authority as the punishment ofcompulsory retirement imposed on the appellant, whohas put in 31 years of long service, only because hehas supplied the details of absentation to one of theemployees, which was neither confidential nor aprivileged document. In any event, the appellantbonafide believed that he was right in furnishing thedetails which the employee had right to ask for. Inour opinion, this is a fit case where the High Courtand the Tribunal should have held that the punishmentimposed is vitiated on account of thedisproportionality. 16. This Court in the case of Union of India andAnr. vs. G. Ganayutham, (1997) 7 SCC 463 whileexamining the scope of judicial review held that"reasonableness", "rationality" and "proportionality"are the grounds on the basis of which judicial reviewof the administrative order can be undertaken.Considering the facts extracted herein before, wefind that the exercise of power by the Respondentfalls in the category of arbitrary exercise of power.17. A perusal of the compulsory retirement orderwould reveal that it was not stated that the actionwas initiated in public interest. 18. This Court also has held in the case of M.S.Bindra vs. Union of India & Ors., (1998) 7 SCC 310that judicial scrutiny of any order imposingpremature compulsory retirement is permissible if theorder is either arbitrary or malafide or if it isbased on no evidence.19. This Court in the case of State of Gujaratand Anr. vs. Suryakant Chunilal Shah (1999) 1 SCC 529held that in a case of compulsory retirement publicinterest is the primary consideration. 20. In the instant case, no material on recordwas placed before the disciplinary authority,appellate authority, revisional authority, Tribunaland before the High Court to reasonably form anopinion that compulsory retirement was in publicinterest. The case on hand is also not a case ofdoubtful integrity. The impugned action ofcompulsorily retiring the appellant from service canbe termed as arbitrary in the sense that noreasonable person could have come to the conclusion https://hcservices.ecourts.gov.in/hcservices/ that the appellant had outlived his utility as amember of railway service and had become a deadwoodwhich had to be chopped off."23. In 1970 (2) LLJ 514 (cited supra), a Five Judges Bench ofthe Hon'ble Supreme Court held as follows:"24. As stated earlier, W. P. 1550 of 1967challenged the validity of the order by which theappellant was compulsorily retired from service witheffect from August 15, 1967 when he completed theage of 55 years. The order was admittedly passedunder r. 56(j) of the Fundamental Rules, as amendedby Fundamental (Sixth Amendment) Rules, 1965. Clause(a) of that rule provides that, except as otherwiseprovided in the rule, every Government servant shallretire on the day he attains the age of 58 years.Clause (d), however, authorises the Government togrant extension of service up to the age of 60 yearsprovided such extension is in public interest andthe grounds therefor are recorded in writing. Clause(j), with which we are presently concerned, reads asfollows :"Notwithstanding anything contained in this Rule,the appropriate authority shall, if it is of theopinion that it is in the public interest to do sohave the absolute right to retire any Governmentservant after he has attained the age of fifty-fiveyears by giving him notice of not less than threemonths in writing :"The Office Memorandum dated July 10, 1966 issued bythe Ministry of Home Affairs provides (1) that sixmonths before a Government servant attains the ageof 55 years, his case should be reviewed and adecision taken whether or not his retention inservice beyond the age of 55 years is in publicinterest, and (2) that once a decision is taken toretain him beyond the age of 55 years, suchGovernment servant would continue in serviceautomatically till he attains the age of compulsoryretirement. i.e., 58 years of age. It furtherprovides that if the appropriate authority considersthat retention of a Government servant beyond theage of 55 years is not in public interest, suchauthority must take necessary action to serve threemonths notice in terms of cl. (j) of F. R. 56. Thatthe requisite notice in terms of cl. (j) of F.R. 56 https://hcservices.ecourts.gov.in/hcservices/ was served on the appellant is not in dispute. InUnion of India v. Col. J. N. Sinha(1970-II, LLJ 284)this Court stated that F. R. 56(j) in express termsconfers on the appropriate authority an absoluteright to retire a Government servant on hisattaining the age of 55 years if such authority isof the opinion that it is in public interest so todo. 25. The decision further states: "If that authority bona fide forms that opinion, thecorrectness of that opinion cannot be challengedbefore courts. It is open to an agrieved party tocontend that the requisite opinion has not beenformed or the decision is based on collateralgrounds or that it is an arbitrary decision."26. The appellant relied on Moti Ram Deka v.General Manager, N.E.F. Railways(1964) 5 S.C.R. 587,where rules 148 (3) and 149 (3) of the IndianRailway Establishment Code were held to contraveneArt. 311 (2), and therefore, invalid. That decisioncannot apply to the present case as the rules therein question dealt with the right to terminateservice on notice of a prescribed period. The Courtthere held that a rule cannot confer on the Railwayadministration power to terminate service while atthe same time laying down the age of superannuationso as to be in contravention of the provisions ofArt. 311(2). Similarly, in Gurdev Singh Sidhu v.Punjab(1964) 7 S.C.R 587, a rule conferring anabsolute right to retire a Government servant afterhe had completed ten years of qualifying service,though providing that such power shall not beexercised except when it is in public interest, wasstruck down as contravening Art. 311(2). The Court,however, held that there were two valid exceptionsto the protection afforded by Art. 311 (2). Thesewere (1) where a permanent public servant was askedto retire on the ground that he had reached the ageof superannuation which was reasonably fixed, and(2) that he was compulsorily retired under the ruleswhich prescribed the normal age of superannuationand provided a reasonably long period of qualifyingservice after which alone compulsory retirementcould be ordered. The first would not amount todismissal or removal from service within Art. 311(2)and the second would be justified by the view taken https://hcservices.ecourts.gov.in/hcservices/ by this Court in a long series of decisions. In T.C. Shivacharan Singh v. Mysore, AIR (1965) S.C. 89,rule 285 of the Mysore Civil Services Rules, 1958conferring power on Government to retirecompulsorily a Government servant in public intereston his completing twenty-five years of qualifyingservice or attaining fifty years of age, though theage of normal superannuation under r. 95 (a) wasfixed at fifty-five years, was upheld on the groundthat the rule laid down a reasonably long period ofqualifying service. (See Takhatrav Shivdatrai Mankadv. Gujarat, (1969) 2 SCC 120, particularly theobservations at p. 123). 27. Since the question of validity of such arule has thus been concluded, such a challenge is nolonger available to the appellant.28. The affidavit in reply by the respondents,dated February 6, 1968, in clear terms avers thatbefore passing the impugned order the appropriateauthority, in accordance with the said OfficeMemorandum of the Ministry of Home Affairs, reviewedthe case of the appellant and came to the conclusionthat it was in public interest that he should becompulsorily retired on his attaining fifty-fiveyears of age. The affidavit also avers that theappropriate authority had "carefully considered allrelevant factors relating to the case of thepetitioner (the appellant) and came to the definiteopinion that it was not in the public interest toretain the petitioner in service beyond the date onwhich he attained the age of fifty-five years." Intheir reply-affidavit, dated July, 10, 1967, in W.P.1550 of 1967 it is further stated that before thesaid decision was reached, the appellant's entireservice record was considered including hisconfidential reports, that where such reports wereadverse they had been earlier comnunicated to himfrom time to time, that the appellant had maderepresentations against them to the competentauthority and even personal interviews beforesuperior officers had been granted to him tovindicate his point of view. It was after all thishad been done and the confidential reports hadremained unaltered that the appropriate authorityconsidered his entire record of service and thenreached the conclusion that F. R. 56(j) should be https://hcservices.ecourts.gov.in/hcservices/ resorted to. It may well be that in spite of thework of the appellant being satisfactory, as heclaimed it was, there may have been other relevantfactors, such as the history of the appellants'entire service and confidential reports throughoutthe period of his service, upon which theappropriate authority may still decide to orderappellant's retirement under F. R. 56(j). Further,there is nothing to show that the impugned order wasnot in public interest. As aforesaid, Col J. N.Sinha's case(1970-II LLJ 284), clearly lays downthat the question as to the correctness of such adecision by the appropriate authority, provided itis bona fide, would not be gone into by this Court.We have already negatived the plea of mala fidesraised by the appellant. Consequently, a plea oflack of bona fides can hardly be entertained.Likewise, the plea that the appropriate authorityhad not applied its mind must also fail in view ofthe clear averments made in that regard in theaffidavits cited earlier, no reason having beenadequately shown to discard those statements asuntrue or otherwise unbelievable. That being theposition, we are constrained to come to theconclusion that the appellant has-failed to make outhis case in any one of his three writ petitions." 24. In AIR 1970 (2) LLJ 284 (cited supra), the Hon'ble SupremeCourt observed as under:"7. The validity of Fundamental Rule 56(j) wasnot questioned before the High Court nor before us.Its validity is not open to question in view of thedecision of this Court in T. G. Shivacharana Singhand Ors. v. State of Mysore AIR (1965) SC 280. 8. Fundamental Rule 56(j) in terms does notrequire that any opportunity should be given to theconcerned government servant 'to show cause againsthis compulsory retirement. A government servantserving under the Union of India holds his office atthe pleasure of the President as provided in Art. 310of the Constitution. But this "Pleasure" doctrine issubject to the rules or law made under Art. 309 aswell as to the conditions prescribed under Art. 311.Rules of natural justice are not embodied rules norcan they be elevated to the position of fundamentalrights. As observed by this Court in Kraipak and Ors. https://hcservices.ecourts.gov.in/hcservices/ v. Union of ' India AIR (1970) SC 150 "the aim ofrules of natural justice is to secure justice or toput it negatively to prevent miscarriage of justice.These rules can operate only in areas not covered byany law validly made. In other words they do notsupplant the law but supplement it." It is sure thatif a statutory provision can be read consistentlywith the principles of natural justice, the courtsshould do so because it must be presumed that thelegislatures and the statutory authorities intend toact in accordance with the principles of naturaljustice. But if on the other hand a statutoryprovision either specifically or by necessaryimplication excludes the application of any or allthe principles of natural justice then the courtcannot ignore the mandate of the legislature or thestatutory authority and read into the concernedprovision the principles of natural justice. Whetherthe exercise of a power concerned should be made inaccordance with any of the principles of naturaljustice or not depends upon the express words of theprovision conferring the power, the nature of thepower conferred, the purpose for which it isconferred and the effect of the exercise of thatpower. 9. Now coming to the express words ofFundamental Rule 56(j), it says that the appropriateauthority has the absolute right to retire agovernment servant if it is of the opinion that it isin the public interest to do so. The right conferredon the appropriate authority is an absolute one. Thatpower can be exercised subject to the conditionsmentioned in the rule, one of which is that theconcerned authority must be of the opinion that it isin public interest to do so. If that authority bonafide forms that opinion, the correctness of thatopinion cannot be challenged before courts. It isopen to an aggrieved party to contend that therequisite opinion has not been formed or the decisionis based on collateral grounds or that it is anarbitrary decision. The 1st respondent challenged theopinion formed by the government on the ground ofmala fide. But that ground has failed. The High Courtdid not accept that plea. The same was not pressedbefore us. The impugned order was not attacked on theground that the required opinion was not formed or https://hcservices.ecourts.gov.in/hcservices/ that the opinion formed was an arbitrary one. One ofthe conditions of the 1st respondent's service isthat the government can choose to retire him any timeafter he completes fifty years if it thinks that itis in public interest to do so. Because of hiscompulsory retirement he does not lose any of therights acquired by him before retirement. Compulsoryretirement involves no civil consequences. Theaforementioned rule 56(j) is not intended for takingany penal action against the government servants.That rule merely embodies one of the facets of thepleasure doctrine embodied in Art. 310 of theConstitution. Various considerations may weigh withthe appropriate authority while exercising the powerconferred under the rule. In some cases, thegovernment may feel that a particular post may bemore usefully held in public interest by an officermore competent than the one who is holding. It may bethat the officer who is holding the post is notinefficient but the appropriate authority may preferto have a more efficient officer. It may further bethat in certain key posts public interest may requirethat a person of undoubted ability and integrityshould be there. There is no denying the fact that inall organizations and more so in governmentorganizations, there is good deal of dead wood. It isin public interest to chop off the same. FundamentalRule 56(j) holds the balance between the rights ofthe individual government servant and the interestsof the public. While a minimum service is guaranteedto the government servant, the government is givenpower to energise its machinery and make it moreefficient by compulsorily retiring those who in itsopinion should not be there in public interest.10. It is true that a compulsory retirement isbound to have some adverse effect on the governmentservant who is compulsorily retired but then, as therule provides, that such retirements can be made onlyafter the officer attains the prescribed age. Furthera compulsorily retired government servant does notlose any of the benefits earned by him till the dateof his retirement. Three months' notice is providedso as to enable him to find out other suitableemployment.11. In our opinion the High Court erred inthinking that the compulsory retirement involves https://hcservices.ecourts.gov.in/hcservices/ civil consequences. Such a retirement does not takeaway any of the rights that have accrued to thegovernment servant because of his past service. Itcannot be said that if the retiring age of all or asection of the government servants is fixed at 50years, the same would involve civil consequences.Under the existing system there is no uniformretirement age for all government servants. Theretirement age is fixed not merely on the basis ofthe interest of the government servant but alsodepending on the requirements of the society. 13. In Binapani Dei's case (supra), Dr. BinapaniDei's date of birth was refixed by the governmentwithout giving her proper opportunity to show thatthe enquiry officer's report was not correct. It isunder those circumstances this Court held that theorder refixing the date of birth was vitiated forfailure to comply with the principles of naturaljustice. Therein the impugned order took away some ofthe existing rights of the petitioner.14. In Kraipak's case (supra), a committeeconsisting of Chief Conservator of Forests, Kashmirand others was appointed to recommend names of theofficers from Kashmir Forest Service for beingselected for the Indian, Forest Service. The ChiefConservator of Forests, Kashmir was one of thecandidates for selection. Further it was establishedtherein that some of the officers who competed withhim had earlier challenged his seniority andconsequently his right to be the Chief Conservatorand that dispute was pending. Under thosecircumstances this Court held that there wascontravention of the principles of natural justice."25. In AIR 1992 (2) SCC 299 (cited supra), the Hon'ble SupremeCourt held as follows:"30. On the above premises, it follows, in ourrespectful opinion that the view taken in J.N. Sinhais the correct one viz., principles of naturaljustice are not attracted in a case of compulsoryretirement under F.R. 56(j) or a rule correspondingto it. In this context, we may point out a practicaldifficulty arising from the simultaneous operationof two rules enunciated in Brij Mohan Singh Chopra.On one hand, it is stated that only the entries oflast ten years should be seen and on the other hand, https://hcservices.ecourts.gov.in/hcservices/ it is stated that if there are any adverse remarkstherein, they must not only be communicated but therepresentations made against them should beconsidered and disposed of before they can be takeninto consideration. Where do we draw the line in thematter of disposal of representation? Does it mean,disposal by the appropriate authority alone or doesit include appeal as well? Even if the appeal isdismissed, the government servant may file arevision or make a representation to a still higherauthority. He may also approach a court or Tribunalfor expunging those remarks. Should the governmentwait until all these stages are over? All thatwould naturally take a long time by which time,these reports would also have become stale. Agovernment servant so minded can adopt one or theother proceeding to keep the matter alive. This isan additional reason for holding that the principleof M.E. Reddy should be preferred over Brij MohanSingh Chopra and Baidyanath Mahapatra, on thequestion of taking into consideration uncommunicatedadverse remarks. 33. At this stage, we think it appropriate toappend a note of clarification. What is normallyrequired to be communicated is adverse remarks - notevery remark, comment or observation made in theconfidential rolls. There may be any number ofremarks, observations and comments, which do notconstitute adverse remarks, but are yet relevant forthe purpose of F.R. 56(j) or a Rule corresponding toit. The object and purposes for which this power isto be exercised are well stated in J.N. Sinha andother decisions referred supra.34. The following principles emerge from theabove discussion:(i) An order of compulsory retirement is not apunishment. It implies no stigma nor any suggestionof misbehaviour.(ii) The order has to be passed by the government onforming the opinion that it is in the publicinterest to retire a government servantcompulsorily. The order is passed on the subjectivesatisfaction of the government. (iii) Principles of natural justice have no place inthe context of an order of compulsory retirement.This does not mean that judicial scrutiny is https://hcservices.ecourts.gov.in/hcservices/ excluded altogether. While the High Court or thisCourt would not examine the matter as an appellatecourt, they may interfere if they are satisfied thatthe order is passed (a) mala fide or (b) that it isbased on no evidence or (c) that it is arbitrary -in the sense that no reasonable person would formthe requisite opinion on the given material; inshort, if it is found to be perverse order.(iv) The government (or the Review Committee, as thecase may be) shall have to consider the entirerecord of service before taking a decision in thematter - of course attaching more importance torecord of and performance during the later years.The record to be so considered would naturallyinclude the entries in the confidentialrecords/character rolls, both favourable andadverse. If a government servant is promoted to ahigher post notwithstanding the adverse remarks,such remarks lose their sting, more so, if thepromotion is based upon merit (selection) and notupon seniority.(v) An order of compulsory retirement is not liableto be quashed by a Court merely on the showing thatwhile passing it uncommunicated adverse remarks werealso taken into consideration. That circumstance byitself cannot be a basis for interfere. Interference is permissible only on the groundsmentioned in (iii) above. This aspect has beendiscussed in paras 30 to 32 above.35. Before parting with the case, we must referto an argument urged by Sri R.K. Garg. He stressedwhat is called, the new concept of Article 14 asadumbrated in Maneka Gandhi and submitted on thatbasis that any and every arbitrary action is open tojudicial scrutiny. The general principle evolved inthe said decision is not in issue here. We areconcerned mainly with the question whether a facetof principle of natural justice - audi alterampartem - is attracted in the case of compulsoryretirement. In other words, the question is whetheracting upon undisclosed material is a ground forquashing the order of compulsory retirement. Sincewe have held that the nature of the function is notquasi-judicial in nature and because the action hasto be taken on the subjective satisfaction of theGovernment, there is no room for importing the said https://hcservices.ecourts.gov.in/hcservices/ facet of natural justice in such a case, moreparticularly when an order of compulsory retirementis not a punishment nor does it involve any stigma."26. In 2009 (5) SCC 732 (cited supra), the Hon'ble SupremeCourt held as follows:"23. The learned counsel for the respondentnext submitted that recourse to "compulsoryretirement" should be only in "public interest"; andthat in this case, as neither the regulations northe order of compulsory retirement referred topublic interest, the compulsory retirement wasvitiated. This contention has no merit. "Publicinterest" is used in the context of compulsoryretirement of government servants while consideringservice under the state. The concept of publicinterest would get replaced by "institutionalinterest" or "utility to the employer" where theemployer is a statutory authority or a governmentcompany and not the government. When the performanceof an employee is inefficient or his service isunsatisfactory, it is prejudicial or detrimental tothe interest of the institution and is of no utilityto the employer. Therefore compulsory retirement canbe resorted to (on a review of the service oncompletion of specified years of service or reachinga specified age) in terms of relevant rules orregulations, where retention is not in the interestsof the institution or of utility to the employer. Itis however not necessary to use the words "not inthe interests of the institution" or "service not ofutility to the employer" in the order of compulsoryretirement as the Regulation provides that no reasonneed be assigned.24. The respondent next drew our attention tothe finding of the High Court that there was somediscrepancy in regard to the number of days ofunauthorized absence during the period of one yearafter 55 years and such unauthorized absence couldnot be a ground for compulsory retirement without anenquiry. It is true that the High Court has referredto the evidence of MW-1 and the entries in themuster rolls, to point out the discrepancy. MW1 hadstated before the tribunal that the period ofunauthorized absence was 27 days whereas the entriesin the muster rolls showed such absence was 32 days https://hcservices.ecourts.gov.in/hcservices/ and that there was also an admission that out of thesaid 32 days, 6 days was availed as sick leave. Butthat cannot be a ground to conclude that the orderof compulsory retirement was bad. 25. The Tribunal and the High Court were notexamining "unauthorized absence" as a misconductwhich was subject matter of a charge. When the showcause notice dated 27.5.1999 referred to the absenceof 20 days during the period of one year beyond 55years, the respondent did not deny the same in hisreply dated 14.6.1999. On the other hand, headmitted such absence and tried to explain it asbeing on account of advanced age and ill health ofhimself and wife. The fact that the unauthorizedabsence was more than 20 days during a period of oneyear was never disputed. 26. The discrepancy in the oral evidence of MW1and the muster rolls in regard to the total numberof unauthorized absence, even if true, was notmaterial, as the respondent was not being punishedfor any specific unauthorized absence. Theunauthorized absence was only the backgroundmaterial to reach the decision that respondent'sservice was unsatisfactory.27. The High Court also erred in treating theshow cause notice dated 27.5.1999 as a charge memoand finding fault with it on the ground that it didnot contain necessary particulars in regard to thecharge of unauthorized absence, and consequentlyholding that in the absence of any inquiry,principles of natural justice were violated. Theletter dated 27.5.1999 was not a charge memo butonly a notice giving opportunity to the employeebefore compulsorily retiring him under Regulation12. In fact even without such a notice he could havebeen compulsorily retired."27. In 2010 (10) SCC 693 (cited supra), the Hon'ble SupremeCourt held as follows:"29. The law requires the Authority to considerthe "entire service record" of the employee whileassessing whether he can be given compulsoryretirement irrespective of the fact that the adverseentries had not been communicated to him and theofficer had been promoted earlier in spite of thoseadverse entries. More so, a single adverse entry https://hcservices.ecourts.gov.in/hcservices/ regarding the integrity of an officer even in remotepast is sufficient to award compulsory retirement.The case of a Judicial Officer is required to beexamined, treating him to be differently from otherwings of the society, as he is serving the State in adifferent capacity. The case of a Judicial Officer isconsidered by a Committee of Judges of the High Courtduly constituted by Hon'ble the Chief Justice andthen the report of the Committee is placed before theFull Court. A decision is taken by the Full Courtafter due deliberation on the matter. Therefore,there is hardly any chance to make the allegations ofnon- application of mind or mala fides. 30. Be that as it may, the service record of thepetitioner revealed that he had not been promoted inthe regular cadre of the District Judge as he was notfound fit for the same because of the adverseentries. The Petitioner was promoted as AdditionalDistrict Judge on ad hoc basis and posted in the FastTrack Court. It was definitely not a promotion onmerit (selection). The High Court had objectivelydecided to recommend his compulsory retirement andthe State Authorities acted accordingly. No fault canbe found with the decision making process or with thedecision."28. If the above judgments are perused carefully, an orderretiring a person compulsorily can be interfered with by thisHon'ble Court, if the order is passed on no records i.e., based onno evidence and if the same has been passed arbitrarily.29. In the present case, in the earlier writ petition filed bythe petitioner herein itself, the learned Judge who disposed offthat petition clearly observed that no records were produced by theCorporation before the Court at that time. Therefore, in theabsence of any records, the learned Single Judge found that theonly ground that could be maintained for passing the order ofcompulsory retirement is the punishment suffered by the petitionerwhich was set aside later on. Therefore, a direction was given tothe petitioner to submit a fresh representation of statingspecifically about the subsequent development of setting aside theorder of punishment suffered by him. Similarly, a direction wasgiven to the Chairman to pass orders on merits on hisrepresentation by taking into consideration of the fact the onlypunishment which was relied on in the impugned order of compulsoryretirement was not in force as on that date. When such a https://hcservices.ecourts.gov.in/hcservices/ representation was submitted by the petitioner, the same wasrejected on the ground that the earlier order was not passed on thebasis of the penalty order but it was only after the deliberationsand assessment of the performance of the officer taking intoaccount the prescribed guidelines that the Committee arrived at theconclusion that the petitioner is not fit to continue in theservices of the Corporation. Therefore, the order of compulsoryretirement was passed, not on the ground that the petitioner is ofdoubtful integrity but on the ground that he is not fit to continuein the services of the Corporation. This subjective satisfactionof the Committee has been reached after examination of all therecords of the case. If that being so, a duty is cast upon theCorporation to produce those related records, on the basis ofwhich, the subjective satisfaction was arrived at holding thepetitioner unfit to continue in the services of the Corporation.When a person challenges an order retiring him compulsorily, then,the onus is on the respondent to prove that he has been retiredcompulsorily not arbitrarily but on the basis of subjectivesatisfaction that has been arrived at after going through therelevant records. But, in this case, the respondent miserablyfailed to discharge the onus i.e., speaking on their shouldersheavily and therefore, in the absence of any records, it is to beconsidered that there is no evidence at all for the respondents tocome to the subjective satisfaction that the petitioner is unfit tohold the post. Therefore, I have no hesitation in holding that theorder impugned in this writ petition is not sustainable and thesame is liable to set aside and the writ petition is allowed asprayed for.30. In the result, the writ petition is allowed. No cost.Consequently, connected miscellaneous petition is closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.cseTo1.Food Corporation of India Rep. By its Chairman/Managing Director, No.16-20, Barakhampalane, New Delhi – 110 001. https://hcservices.ecourts.gov.in/hcservices/

2.The Zonal Manager (South), Food Corporation of India, Zonal Office, Haddows Road, Chennai.1 cc to M/s.a. Jenasenan, Advocate, sr. 77498Writ Petition.No.34405 of 2007andM.P.No.2 of 2007SAI (CO)kk 11/1