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Judgment
Mukundakam Sharma, C.J.—In this appeal, the judgment and order dated 13th March, 2006 passed by the learned Single Judge is under
challenge. By the aforesaid judgment and order, the learned Single Judge allowed the writ petition filed by the respondent holding that the order of
compulsory retirement passed against the respondent was punitive as the same was passed as a short cut to avoid the departmental inquiry.
Consequent thereupon an order was passed by the learned Single Judge that the respondent shall be paid his salary and allowances to which he
was entitled to had he continued in service, till his retirement in the normal course, along with interest @ 8% per annum for the period from 1st
January, 1999.
Being aggrieved by the said order, this appeal was filed on behalf of the Airport Authority of India Ltd. contending, inter alia, that the order
passed by the appellant compulsorily retiring the respondent from service of the International Airport Authority of India should have been declared
as legal and valid.
The respondent joined the services of Airport Authority of India in July, 1981 on deputation basis from the defense service and his period of
deputation was to end on 15th July, 1984. Before that the Authority issued an advertisement calling for applications for filling up the post of Chief
Engineer as against which the respondent submitted an application. His initial employer, namely, the Ministry of defense, gave permission to his
intention to apply for the said post under the Airport Authority of India. The respondent was found fit and suitable for appointment and accordingly
he was appointed as the Chief Engineer of the Airport Authority of India on 6th April, 1983. The appellant was also permanently absorbed in the
services of the Authority on 12th June, 1984. By an order dated 18th November, 1985, the respondent was assigned duties of Member
(Engineering) in addition to the duties as Chief Engineer till 6th February, 1987. A regular vacancy in the post of Member (Engineering) was
advertised calling for applications from eligible candidates as against which the respondent also applied. While the process of appointment was
under way, an order was passed on 6th February, 1987 transferring the current duty charge in the post of Member (Engineer) performed by the
respondent to one Shri R.C. Rekhi, Chief Engineer (Electrical) and the respondent was treated as an Officer on Special Duty. As against the
aforesaid action on the part of the Airport Authority of India, the respondent lodged a letter of protest dated 29th March, 1987. A memorandum
containing warning was issued to the respondent by the Chairman on 3rd March, 1987. Thereafter also memoranda were issued to the respondent
on 21st July, 1987 and 22nd July, 1987 as against which replies were filed by the respondent refuting the allegations. Thereafter on 20th August,
1987, an order was passed by the Airport Authority of India compulsorily retiring the respondent from service.
Being aggrieved by the aforesaid order, a writ petition was filed by the respondent taking up various pleas. A plea was taken that the Review
Committee, which considered the matter of retirement of the respondent was illegally constituted and that the order compulsorily retiring the
respondent from service is punitive inasmuch as the same is based upon an inquiry which was held behind the back of the respondent.
The learned Single Judge, before whom various pleas were raised on behalf of the respondent/ writ petitioner and the appellant herein,
considered the material on record and also discussed the ratio of various decisions, which were cited before him. The learned Single Judge
referred to various decisions of the Supreme Court including Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and
another, , Union of India (UOI) Vs. Col. J.N. Sinha and Another, , H.C. Gargi Vs. State of Haryana, and Gian Singh Mann Vs. High Court of
Punjab and Haryana and Another, . Upon considering the aforesaid decisions along with other decisions of the Supreme court, namely, Posts and
Telegraphs Board and others Vs. C.S.N. Murthy, , K. Kandaswamy Vs. Union of India, , the learned Single Judge culled out the following
principles of law which are re-stated by the Supreme Court in State of Gujarat Vs. Umedbhai M. Patel, :
The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake
of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard
to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favor of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure.
After crystallising the principles of law laid down by the Supreme Court and upon going through the orders as aforesaid, the learned Single
Judge analysed the service records of the respondent and in the context thereof held that the appellant has not shown as to how the ACRs of the
respondent were deemed unsatisfactory, particularly when he was permanently absorbed in 1984 as a Chief Engineer and assigned the
responsibilities as Member Engineering. It was also held that the memoranda were issued to the respondent on the basis of the reports of the CVC
and the CBI''s letter. At this stage we may mention that when reply was being sent by the respondent as against the aforesaid memoranda, the
aforesaid impugned order was passed. The impugned order dated 20th August, 1987, which was the subject matter of challenge in the writ
petition, was worded in the following manner:
20th August, 1987
ORDER
Whereas Shri K.K. Sood, officer on special duty (Quality and Standardization ,IAAI has attained the age of 55 years.
And whereas the case of Shri K.K. Sood has been reviewed by the undersigned in the light of IAAI''s general conditions of service.
And whereas after perusal of the relevant records the undersigned is of the opinion that Shri K.K. Sud is an officer of doubtful integrity and,
Therefore, his continuance in services of IAAI is not in public interest.
Now, Therefore, the undersigned retires Shri K.K. Sud, O.S.D. (Quality and Standardization ,IAAI, IAAI from the services of IAAI with effect
from the afternoon of 8th August, 1987.
A cheque bearing No. 736509 dated 20.8.87 for Rs. 17,643.60 in lieu of three month''s notice pay of Shri Sud is annexed hereto.
Sd. Prof. N.K. Singh
Chairman
International Airport Authority of India.
In view of the contents and the language used and in the light of the decision of the Supreme Court in Jagdish Mitter Vs. The Union of India
(UOI), ; Madan Gopal Vs. State of Punjab, ; The State of Uttar Pradesh Vs. Madan Mohan Nagar, and State of U.P. and Another Vs. Abhai
Kishore Masta, , it was held by the learned Single Judge that use of expression ''doubtful integrity'' in the impugned order is punitive inasmuch as
similar expression like ''found undesirable to be retained in Government service'' was found to be ex facie punitive. One of the submissions that was
made by the appellant that the expression ''doubtful integrity'' as mentioned in the impugned order should be read as ''public interest'', was not
accepted by the learned Single Judge on the ground that nothing could be added or subtracted from the order itself as is held in the case of
Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, .
Counsel appearing for the appellant submitted before us that as to whether or not the respondent has outlived his utility was considered and
assessment was made with regard to the performance and suitability of the respondent to be retained in service and if during the aforesaid course it
transpires that there is some doubt with regard to his integrity, the same could always be reflected and mentioned in the order.
We are, however, unable to accept the aforesaid contention. If an expression was used with regard to suitability, the case could have been
different. What is mentioned in the impugned order is with regard to his integrity. Memoranda were also issued to the respondent prior to the
issuance of the aforesaid order regarding his integrity. A departmental inquiry was required to be initiated to come to the conclusion whether or not
the respondent has committed any misconduct and whether he was a man of doubtful integrity.
Having mentioned in the order itself that the respondent is a man of doubtful integrity, the said order cannot but be interpreted as a punitive
order. We find no reason to take a different view than what was taken by the learned Single Judge in that regard. However, so far the relief part is
concerned, the learned Single Judge has held that the respondent has already crossed the normal age of superannuation and, Therefore, there is no
question for directing for his reinstatement. The respondent was, however, directed to be paid all his salary and allowances to which he would have
been entitled to along with interest @ 8% per annum.
Considering the facts and circumstances of the case and also the fact that the respondent had no occasion to render any service to the
appellant for the period during which he was out of service, we consider that payment of 50% of the salary and allowances would be appropriate
and would meet the ends of justice.
While coming to the aforesaid conclusion, we get guidance from the ratio of the decision of the Supreme Court in Allahabad Jal Sansthan Vs.
Daya Shankar Rai and Another, . In the said decision, the Supreme Court has held thus:
We have referred to certain decisions of this Court to highlight that earlier in the event of an order of dismissal being set aside, reinstatement
with full back wages was the usual result. But now with the passage of time, it has come to be realised that industry is being compelled to pay the
workman for a period during which he apparently contributed little or nothing at all, for a period that was spent unproductively, while the workman
is being compelled to go back to a situation which prevailed many years ago when he was dismissed....
The said position was reiterated by the Supreme Court in M.L. Binjolkar Vs. State of Madhya Pradesh, , wherein the decision in Allahabad
Jal Sansthan (supra) was followed.
Having held thus, we may also mention at this stage that while issuing notice on this appeal, a direction was issued that 50% of the amount
covered by the impugned order would be deposited in this Court. On fulfillment of the aforesaid condition, a stay was granted to the operation of
the impugned judgment and order. The said amount was ordered to be kept in a fixed deposit account.
Considering the facts and circumstances of the case, we uphold the order of the learned Single Judge to the effect that the order dated 20th
August, 1987 is required to be set aside as it was punitive, which we hereby do. But we modify the consequential order passed by the learned
Single Judge to the extent that the respondent shall be paid 50% of the salary and allowances to which he was entitled to. The same is deposited in
this Court under orders of this Court. The aforesaid amount, which is deposited, shall be paid to the respondent. Any short fall, if any, shall also be
paid within six weeks from today.
The appeal stands disposed of in terms of the aforesaid order.