The Management of Indian Airlines Limited v. 1.S.M.K.Khan

2. The factual matrix of the case is as follows :2.1. First respondent joined the service under theappellant management as a Security Guard on 12.09.1966. When he wasto attain the age of 55 years, his case came up for review beforethe Regional Director (South). The said superior officer issued aMemo, dated 11.05.1998, to first respondent, stating that hisretention in service beyond the age of 55 years required a perusalof his past records and on examination of the previous serviceparticulars, he proposed to retire the first respondent from theservice of Indian Airlines Limited, in terms and Service Regulation12, with effect from 10.08.1998 (close of work). 2.2. The grounds adduced in the memo are, despite variouswarnings and punishments, the incumbent had not shown anyimprovement and his attendance records for the period from 1994 to1997 were far from satisfactory and, hence, it was felt that nouseful purpose would be served by continuing his services in thecompany beyond the age of 55 years. He was also called upon to makehis submissions as to the proposed retirement.2.3. Thereupon, on 18th May,1998, first respondentsubmitted an explanation to the above said officer, stating thatsince he had to incur loans for his elder daughter's marriage and tosettle his elder son, his service, beyond the age of 55 years, mightbe considered by the management and that he would work to thefullest satisfaction of his superiors.2.4. In response to the said letter, on 15.07.1998, theRegional Director (South) sent a letter to first respondent,mentioning that the explanation submitted by first respondent wouldnot make any ground for reconsideration of the decision taken by themanagement and, hence, his services came to a halt and he wouldstand retired at the close of work on 10.08.19982.5. Then, the first respondent met the above said brassof management and personally represented his family circumstances,requesting to allow him to continue in service.2.6. Subsequently, the said officer passed an order, dated08.08.1998, under Regulation 12, stating that the personalrepresentation of first respondent was considered and it was decidedto afford one more opportunity for him to continue in service forone year beyond the age of 55 years and that his retention inservice beyond 10.05.1999 would be subject to the outcome of thereview that would be carried out in due course and that hisattendance and performance would be closely watched. https://hcservices.ecourts.gov.in/hcservices/

2.7. Thereafter, on 28.12.1998, Manager (Security) issueda letter to first respondent, stating that during the period fromJune to December,1998, he remained absent for 17 days and that hisfailure to improve the attendance would entail in reversing thedecision of the management. 2.8. On 27.05.1999, Regional Director (South) issued aproceeding under Service Regulation 12, mentioning that in spite ofgranting sufficient opportunity, first respondent remained absentfor 20 days during the extended period of service, showing noimprovement in his attendance records. Hence, it was proposed toretire him from service of the management at the close of work on26.08.1999 and, accordingly, he was directed to make submissions, ifany, in writing within seven days. 2.9. On 14.06.1999, first respondent submitted a replyexplanation, mentioning that he had to celebrate marriage of hisdaughter and educate his son, requesting to show mercy on him forcontinuation in service.2.10. After perusing the said explanation, on 22.06.1999,the above said officer shot off a letter, stating that even thoughample opportunities were given to him, first respondent did notimprove his attendance and the performance during the extendedperiod of service and, therefore, it was decided to retire him fromservice at the close of work on 26.08.1999.2.11. Then, first respondent raised an industrial dispute,which was referred to Central Government Industrial Tribunal-cum-Labour Court, second respondent herein, for adjudication.2.12. The Tribunal, considering the materials placedbefore it, held that the compulsory retirement of first respondentfrom the service of the appellant was justified. 2.13. As against the said finding, firstrespondent/workman filed a Writ Petition, which was allowed. 2.14. Hence, this Writ Appeal, at the instance of themanagement.3. The contention of the appellant before the LabourCourt, the learned single Judge and also this Court is that firstrespondent was a chronic absentee from the work and he had sufferedmany penalties at the hands of the management, which were enumeratedin the first letter, dated 11.05.1998 and even though he was to beretired compulsorily on attaining the age of 55 years, in order to https://hcservices.ecourts.gov.in/hcservices/ grant one more opportunity, his period was extended by one year andeven during the period of extended service, he remained as such,absenting himself from duty for 20 days, rendering his job to begiven up by the management.4. The main stay of the contention of the learned counselfor the appellant is that since the first respondent wasunauthorisedly absent for 20 days during the extended period ofservice, he could not be retained in service any more and that sincehis performance was not satisfactory, it cannot be contended that noretirement could be considered between the age of 55 and 58 years.Further, the first respondent is estopped by his letter, dated18.05.1998, to challenge the retirement, and he has not disputed hisabsence in his letter, dated 14.06.1999, and, therefore, thedecision taken by the management, retiring the first respondent, islegally valid.5. Before going into the merits of rival contentions ofthe parties, it is profitable to extract Rule 12 of Indian AirlinesEmployees Service Regulations, which reads as follows :12. An employee shall retire from theservice of the Corporation on attaining the ageof 58 years provided that the competent authoritymay ask an employee to retire after he attainsthe age of 55 years on giving 3 months' noticewithout assigning any reason. "An employee,(a) on attaining the age of 55 years; or(b) on the completion of 25 years ofcontinuous service, may, by giving 3 monthsnotice, voluntarily retire from service.Provided that the voluntary retirement underclause (b) shall be subject to approval of thecompetent authority."6. In the first place, it is to be noted that though afterscrutiny of the past records of first respondent with reference tothe adverse entries and the penalties imposed on him, the managementallowed him to continue in service for one year and it was alsodirected that his services would be closely observed. So, afterallowing him beyond 55 years in service, the adverse entries wouldno longer be operative for future course of action to be taken bythe management, for the purpose of deciding to retire him fromservice. 7. Principles of natural justice have no place in thecontext of an order of compulsory retirement. This does not meanthat judicial scrutiny is excluded altogether. While this Courtwould not examine the matter as an appellate court, it may interfereif it is satisfied that the order is passed : https://hcservices.ecourts.gov.in/hcservices/ (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary -in the sense that no reasonable person would form the requisiteopinion on the given material ; in short, if it is found to be aperverse order.8. In order to appreciate the contentions of both theparties, it has become inevitable to re-apprise the materials onrecord, which were discussed by the Central Government IndustrialTribunal, to some possible extent, as the above said three features,approved by legal concepts, appear on the face of record. 9. Before the Tribunal, on behalf of the workman, none wasprojected for examination, whereas, for management, the PersonnelManager was examined as M.W.1, whose oral testimony throws somelight on the subject. 10. After the above said communications between theparties, the period between 08.08.1998 and 27.05,1999 was taken intoconsideration, for reviewing the services of first respondent. Itwas stated that first respondent remained absent from duty for 20days 11. At this juncture, it is to be noted that in theimpugned order, dated 22.06.1999, which is to the effect of retiringfirst respondent from service, it is not stated that firstrespondent was unauthorisedly absent for certain period. However,in the previous letter, dated 27.05,1999, the management pointed outthat first respondent remained absent for 20 days. 12. The said aspect receives a scathing attack from theside of workman, contending that the nature of absence from duty wasnot portrayed therein and, in none of the communications emanatedfrom the management, it was indicated that it was an unauthorisedabsence. 13. However, in the testimony of M.W.1, he has stated theparticulars of absence of first respondent with reference to thedates in the years 1998 and 1999, which are enlisted as follows :06.07.1998, 10.07.1998, 29.07.1998, 17.08.1998 (½ day),28.08.1998 (½ day), 25.08.1998, 27.09.1998, 10.10.1998, 11.10.1998,12.10.1998, 18.10.1998, 02.11.1998, 05.11.1998, 07.11.1998,21.11.1998, 26.11.1998, 20.12.1998, 30.12.1998, 01.01.1999,06.01.1999 (½ day), 07.01.1999, 12.01.1999, 13.01.1999, 29.04.1999(½ day), 01.05.1999, 03.05.1999, 10.05.1999, 15.05.1999 and19.05.1999, totally 27 days. https://hcservices.ecourts.gov.in/hcservices/

14. In order to show the entries in the muster rollsbefore the Tribunal, the management produced copies of them.Sifting of the below noted entries, craving for attention, has givenrise to the following days of absence of first respondent, which areunder the column "Absent without permission" :July, 1998 :3 days (extract not found in typed set, but mentioned by M.W.1) August, 1998:3 daysSeptember,1998 : 1 dayOctober, 1998:4 daysNovember,1998:5 daysDecember,1998:11 daysMay,1999:5 days (extract found in typed set, but notmentioned by M.W.1) ----------32 days----------15. M.W.1 further stated that first respondent availed 6days leave from 10.09.1998 to 15.09.1998 on the ground of self-sickness, for which he produced medical certificate. So, as per themanagement, the said period is not unauthorised. 16. According to M.W.1, before the Tribunal, the period ofabsence was 27 days. While calculating the days of absence in 1998-1999, even though he stated that unauthorised absence was for 20days, as per the entries in muster rolls, under the column "Absentwithout permission", it is calculated at 32 days. It is stated thatout of the above said period, 6 days leave, available to the creditof first respondent, would be adjusted.17. In the muster roll pertaining to September,1998, anentry is available under the column "Absent without permission" foronly one day. A further entry is also found under the column"Privilege Leave". Hence, in September,1998, only one day isreported to be a day of unauthorised absence and 32 days of allegedunauthorised absence is exclusive of 6 days of Sick Leave. So, evenfrom the side of management, there are significant variations, as tothe alleged period of absence. 18. We are at a loss to understand as to which one is thecorrect figure. If the statement of M.W.1 and the entries in themuster rolls, which are contradictory to each other, are taken intoconsideration, in the presence of mentioning of 20 days' absence inthe letter, dated 27.05.1999, our definite conclusion in this regardwould be that muster rolls are not maintained properly and theentries found therein could not be believed at all. Even though https://hcservices.ecourts.gov.in/hcservices/ M.W.1 was quizzed in cross-examination before the Tribunal withreference to the individuals who made the entries, in order toestablish the genuineness of the said entries, nobody was brought towitness box. So, the theory of unauthorised absence for 20 dayscame to a naught. The notice of retirement, without correctparticulars, will not stand for a minute's scrutiny and it wouldlose its probative value. 19. The next limb of contention of learned Senior Counselfor first respondent is that the principles of natural justice havebeen violated in the conduct of domestic inquiry.20. In the letters, dated 27.05.1999 and 22.06.1999,proposing to retire first respondent, it is merely stated that hewas unauthorisedly absent for 20 days. Both the letters are bereftof particulars with reference to the dates and month, during whichthe unauthorised absence occurred. As already stated, a scrutiny ofmuster rolls shows that there is an entry with regard tounauthorised absence for 32 days, whereas in the above said twoletters, it is stated as 20 days, without any particulars. Theworkman should be put to notice of the salient features of thecharges levelled against him, so as to enable him to effectivelysubmit his explanation. If the necessary particulars are notfurnished by the management, it will deprive the workman of facingthe charges efficiently in the domestic inquiry. Even though it isstated on behalf of the management that the workman has admitted theperiod of absence, still, it will not pave the way to issue adefective charge sheet.21. As far as the present case is concerned, there is nocommunication under description 'Charge sheet'. So, the letter,dated 27.05.1999, may be treated as a Charge Memo, only for thepurpose of getting explanation or representation from the workman.When the said letter is silent about the particulars, upon which aninquiry was proceeded against first respondent, the necessarycorollary would be, the principles of natural justice have beenviolated.22. Much was said about the authority of the management toinvoke Regulation 12, for the purpose of retiring a workman, underthe circumstances available in this matter. 23. According to the workman, once a review was undertakenbefore he attained the age of 55 years and, under any circumstances,if he was allowed to continue after completion of 55 years, he isentitled to continue up to the usual age of superannuation fromservice i.e., 58 years and any second review, after completion of 55years, is alien to law. This proposition of law is amply fortifiedby the illuminating legal pronouncements. https://hcservices.ecourts.gov.in/hcservices/

24. A proposition, that with regard to continuation of anemployee after 50 years, after review before his completion of 50years of age, a second review would not be possible, was discussedby a Full Bench of this Court in P.A.Manickam v. Government of TamilNadu, 1984 (I) Writ L.R. 1, wherein it has been held as follows : "25. .... We are of the view that the ratioof the judgment is that if the case had not beendecided against the officer before he attains theage of 50 years, then any considerationsubsequent to 50 years of age shall be consideredto be a second review and not a first reviewitself. Therefore, this decision is a clearauthority that even in the instant case no reviewwas possible after the appellant attained the ageof 50 years.26. In this connection, we may also usefullynote the rationale or the principle behind thisrule that the authorities shall not consider thecase of an officer after he attains the age of 50years. As observed by the Supreme Court in theabove decision while purity in administration iscertainly to be desired, the security and moraleof the service have also to be maintained. Theprinciple behind the instruction that thequestion of compulsory retirement should beconsidered before an officer attains the age of50 years and not afterwards is that the sword ofDamocles must not hang over the officer every sixmonths after he attains the age of 50 years....."25. The respondent in the above said case carried thematter to the Hon'ble Supreme Court in Civil Appeal No.352 of 1985and other connected matters and the Supreme Court decided the casein Govt.of Tamil Nadu v. P.A.Manickam, AIR 1996 SUPREME COURT 2250,wherein the Apex Court followed a Full Bench decision of the sameCourt in State of Uttar Pradesh v. Chandra Mohan Nigam, 1978 (1)SCR 521 = AIR 1977 SC 2411. The operative portion of the saiddecision goes thus :"29. The correct position that emerges fromRule 16 (3) read with the procedural instructionsis that the Central Government, afterconsultation with the State Government, mayprematurely retire a civil servant with threemonths' previous notice prior to his attaining 50years or 55 years, as the case may be. The only https://hcservices.ecourts.gov.in/hcservices/ exception is of those cases which had to beexamined for the first time after amendment ofthe rule substituting 50 years or 55 where evenofficers, who had crossed the age of 50 years,even before reaching 55, could be for the firsttime reviewed. Once a review has taken place andno decision to retire on that review has beenordered by the Central Government, the officergets a lease in the case of 50 years up to thenext barrier at 55 and, if he is again cleared atthat point, he is free and untramelled up to 58,which is his usual span of the service career.This is the normal rule subject always toexceptional circumstances such as disclosure offresh objectionable grounds with regard tointegrity or some other reasonably weightyreason." 26. Guided by the dictum laid down in the above saiddecision of the Hon'ble Supreme Court, it has to be held that once areview has been undertaken before first respondent completed the ageof 55 years and compulsory retirement was proposed to him and againhe was allowed to continue in service beyond 55 years, themanagement cannot proceed to retire him after his attaining the ageof 55 years, on the ground of unauthorised absence. If themanagement desires, there is no embargo for it to initiatedisciplinary proceedings against him. 27. An analysis has to be made to a circumstance, wherethe notice, dated 27.05.1999, is found not fulfilling therequirements contemplated under Rule 12 and that the said noticeshows that the proposed retirement would take effect from26.08.1999, at the close of work and even though the period betweenthe date of issuance of the letter and the date of proposedretirement would be three months, first respondent received the saidletter on 31.05.1999 and, hence, the notice is short of the requiredperiod and, therefore, the notice of retirement, dated 27.05,1999,suffers from infirmity. The said notice violates Regulation 12. 28. Conversely, Mr.N.G.R.Prasad, learned counsel for theappellant management, would strenuously contend that though thecaliber of the workman was not up to the mark as found in theletter, dated 11.05.1998, mercy was shown to him and he was offeredan opportunity to improve his performance, but he failed to do soand, in the absence of improvement on the part of the workman, it isdifficult for the administration of the management, to retain suchpersonnel in service any longer. https://hcservices.ecourts.gov.in/hcservices/

29. In support of his contention, the learned counselplaced reliance upon a decision of the Hon'ble Apex Court inAllahabad Bank Officers' Association v. Allahabad Bank, whereinTheir Lordships have held as follows :"The power to compulsorily retire agovernment servant is one of the facets of thedoctrine of pleasure incorporated in Article 310of the Constitution. The object of compulsoryretirement is to weed out the dead wood in orderto maintain efficiency and initiative in theservice and also to dispense with the services ofthose whose integrity is doubtful so as topreserve purity in the administration. Generallyspeaking, Service Rules provide for compulsoryretirement of a government servant on hiscompleting certain number of years of service orattaining the prescribed age. His service recordis reviewed at that stage and a decision is takenwhether he should be compulsorily retired orcontinued further in service. There is nolevelling of a charge or imputation requiring anexplanation from the government servant. Whilemisconduct and inefficiency are factors thatenter into the account where the order is one ofdismissal or removal or of retirement, there isthis difference that while in the case ofretirement they merely furnish the background andthe enquiry, if held – and there is no duty tohold an enquiry – is only for the satisfaction ofthe authorities who have to take action, in thecase of dismissal or removal they form the verybasis on which the order is made. A governmentservant who is compulsorily retired does not loseany part of the benefit that he has earned duringservice. Thus, compulsory retirement differsboth from dismissal and removal as it involves nopenal consequences. Therefore, compulsoryretirement is not considered prima facie and perse a punishment and does not attract theprovisions of Article 311."30. Reasserting the opposition, learned counsel for theappellant management would also submit that inefficiency on the partof the workman was considered by the management and it was rightlydecided to put an end to his services and, by no stretch ofimagination, it could be concluded that the action of the managementwas perverse. His further thrust is that compulsory retirement ofan employee in public service will not be a punishment on him and it https://hcservices.ecourts.gov.in/hcservices/ could not at all be comprehended as a punitive one. He alsocontends that the past adverse entries may also be taken intoconsideration by the management, however stale they are, to arriveat a conclusion, whether a particular employee deserves forcompulsory retirement, and the manner of projecting adverse oldentries would not, in any way, be redundant to the judiciallyevolved concepts. For this proposition of law, he placed strongreliance upon a decision of the Supreme Court in State of U.P. v.Vijay Kumar Jain, 2002 (3) Supreme Court Cases, 641, the relevantportion of which goes thus:"Withholding of integrity of a governmentemployee is a serious matter. In the presentcase, the integrity of the respondent waswithheld by an order dated 13-6-1997 and thesaid entry in the character roll of therespondent was well within ten years of passingof the order of compulsory retirement. Shiftingof the entry awarded by that order to adifferent period by the Services Tribunal or theentry going beyond ten years of passing of theorder of compulsory retirement does not meanthat vigour and sting of the adverse entry waslost. Vigour or sting of an adverse entry isnot wiped out, merely because it is relatable to11th or 12th year of passing of the order ofcompulsory retirement. The said adverse entry initself was sufficient to compulsorily retire therespondent from service."31. In the case on hand, the workman has not assailed theorder of retirement, on the ground that the adverse entries are notcommunicated to him. Hence, the appellant cannot take recourse tothe above decision.32. As for the service of the workman, there is noquestion of doubtful integrity on his part. Even the letter, dated11.05.1998, does not show anything about it. 33. The only ground upon which the management has takenthe decision is the alleged unauthorised absence. Firstly, theparticulars of absence do not find place in the letters, dated27.05.1999 and 22.06.1999. Nextly, a careful scrutiny of the oraltestimony of M.W.1 before the Tribunal and our discussion as toentries in the relevant muster rolls would go a long way to showthat the attendance registers have not been properly maintained.Added to it, the person, possessing responsibility, was notexamined. So, on the strength of entries in the muster rolls, theservice of first respondent could not be put to an end, branding as https://hcservices.ecourts.gov.in/hcservices/ compulsory retirement. It is also pleaded that first respondent hadto work overtime continuously, extending his work to about 22.00hours, which was not considered by the management and he, being theSenior Security Assistant, his overtime duty had to be duly countedby the management. But, the management is silent in this regard. 34. Hence, our inferential conclusion would be, the term'unauthorised absence' which is conceptually inconceivable, wasinvented subsequently at the time of filing counter before theTribunal, to project the defence of the management and nothing else. 35. The learned single Judge has thoroughly analysed therelevant materials and records and come to a correct conclusion thatthe unauthorised absence of the workman was not definite at the timewhen the competent authority issued a letter of compulsoryretirement and, therefore, it has to be held that the said decisionwas patently arbitrary and the same is liable to be set aside. Thelearned single Judge also considered the circumstances that sincethe first respondent had already reached the age of superannuation,namely, 58 years on 31.05.2001, the monetary benefits available tohim have to be worked out, as if he got retired on superannuation,at the age of 58 years.36. In view of our above said discussion, we hold that thedecision of the management in retiring the first respondentcompulsorily from service could not be countenanced both on factsand in law. Therefore, the order passed by the learned single Judgedoes not call for any interference and the same deserves to beconfirmed.37. Appeal is dismissed. No costs. dixitSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ToThe Presiding Officer,Central Government Industrial Tribunal,Shastri Bhavan,Chennai.+ 1 cc to Mr. N. G. R. Prasad, Advocate, SR No.44305+ 1 cc to Mr. P. Chandrasekar, Advocate, SR No.44162ASM(CO)SR/27.7.2007W.A.No.77 OF 2004