Braithwaite Officers Association vs Union of India (UOI)

Dilip Kumar Seth, J.—This writ petition is at the behest of the Braithwaite Officers'' Association representing the case of the persons who are still in employment. It relates to the rolling back of age of superannuation from 60 years to 58 years after it was raised from 58 years to 60 years in 1998.

Facts:

The Petitioner''s case in short is that the age of retirement in Braithwaite was 60 years. The Braithwaite & Company Limited (BCL) is a unit of Bharat Bhari Udyog Nigam Limited (BBUNL). However, the age of retirement of those officers appointed prior to the October 10, 1984 would remain 60 years while those appointed after October 10, 1984, would be 58 years as is apparent from the clarification in Annexure ''P-2''. By a letter dated May 19, 1998 (Annexure ''P-3'') issued by the Department of Public Enterprises, Ministry of Industry, age of retirement below board level employees was raised from 58 years to 60 years. Subsequently, by a, notice dated April 23, 2001 (Annexure ''P-4''), it was notified that pursuant to a review of the policy of the Government of India by a Memo dated January 1, 2001, the Board of Directors of BCL was authorized to restore the retirement of sick Public Sector Undertakings (PS Usj to 58 years subject to the approval of the Government of India and as such the Board had decided to roll back the age of retirement at 58 years. This action has been challenged by the Respondents (Petitioner-Sic) on various grounds. By reason of such decision/the members of the association would loose two years of service. On the other hand, some of the officers had enjoyed the full term, of 60 years and had retired. The company had been registered with Board for Industrial and Financial Reconstruction (BIFR), A package for revival of BCL was approved by BIFR. In the said package, the approved staff strength was 3.402. This has come down to 2,357 as on March 31, 2001 by reason of retirement or death of some of the employees. It is further alleged that for rolling down the age, no permission was sought for from BIFR. On the other hand, a Voluntary Retirement Scheme (VRS) was floated by BBUNL. Pursuant thereto, many of the officers were allowed V. on the basis of retirement age as on 60 years. Thus, the Petitioner has been discriminated upon.

Submission on behalf of the Petitioner:

Mr. Jayanta Mitra, learned Counsel for the Petitioner, contended that the decision, even if a policy decision, can be interfered with, within the parameters laid down in the ratio decided in the decisions cited by him. He has spelt out the extent to which the Court has jurisdiction under Article 226 of the Constitution to interfere. Relying on those decisions, having regard to the facts and circumstances pointed out by him, he pointed out that the present case is a fit one where the Court should interfere. The present decision suffers from ail the infirmities recognized in these decisions. In support of his contention he relied upon the decisions in Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, ; Bangalore Medical Trust Vs. B.S. Muddappa and others, ; Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, ; Union of India and Others Vs. Dinesh Engineering Corporation and Another etc., ; Tyre Corporation of India Officers'' Association v. Union of India and Ors. 2001 (3) C.H.N. 774 and Secretary of State for Education and Science v. Metropolitan Borough of Tameplate 1976(3) All E.R. 665.

3.1 On the above principle, Mr. Mitra had dealt with the facts of this case and pointed out from various documents that the decision taken is unreasonable. We shall discuss in detail the various points with regard to unreasonableness having regard to various documents at appropriate stage.

Submission of behalf of the Respondents:

Mrs. Archana Sengupta, appeared on behalf of the Union of India. The preliminary objection she had taken is that the writ petition is not maintainable on behalf of the Association. On merit, she relied upon B.J. Shetty and Ors. v. Air India Limited 2000 (1) C.L.L. 230 (Bom.). She also placed reliance on Burn Standard and Company v. Burn Standard Officers� Association (Head Office) and Ors. She had contended that since the company is registered as a sick company under the Board for Industrial and Financial Reconstruction (BIFR), it is BIFR, which can deal with this matter. It cannot be challenged in writ jurisdiction. The Petitioner''s remedy is before BIFR. Secondly, she contends that it is a policy decision and it cannot be questioned so long it is not shown that it is arbitrary. According to her, the decision taken is justified. When a matter is before BIFR, the primary question is revival. In case the decision taken, helps revival then it cannot be interfered with.

I have heard the respective Counsel at length Maintainability:

The first question with regard to the maintainability may be dealt with before we proceed further. So far as BCL and BBUNL are concerned, those are definitely States within the meaning of Article 12 and, therefore, on this ground, the writ petition cannot be thrown out. The other ground that it is BIFR, which is the appropriate forum also does not seem to be sustainable. BIFR is concerned with the revival of the unit and it might have laid down guidelines in the package, but it does not involve itself in the day-to-day affairs and administrative policy decisions. Neither it has anything to do with the service conditions of the employees. Therefore this ground also cannot be sustained. So far as the question of maintainability by the Association is concerned, it appears that it is a registered one and is representing its officers, who are determinable. The members �of the Association are in the employment of the Respondent. They form a specified class of employees. They are being represented by their registered Association. Therefore, this ground also cannot be sustained.

BIFR package, if hit by:

Before we embark on the question of merit, we may note the admitted facts. A reference to BIFR was made on October 17, 1995. Under the said scheme, the retirement age was 58 years. On May 19, 1998, the retirement age was raised to 60 years. Therefore, if the BIFR package makes the retirement age at 58, it cannot be brought down below 58. By reason of Government of India policy, even if the age is enhanced, it would not affect the BIFR or the package, neither it would, if it were rolled back. The rolling back does not seem to be hit by the package of the BIFR.

7.1. By a resolution dated July 9, 1998, the age was enhanced to 60 years. BIFR conveyed its approval to the enhancement of age of superannuation by its letter dated July 16, 1998. It was communicated on the basis of the policy of the Government of India. It "was not an enhancement at the initiation of BIFR. It had agreed to the policy of the Central Government. Therefore, if the Central Government revises its policy and rolls back the age to 58 years, the BIFR similarly cannot object to such rolling back. By a Memo dated August 21, 1998, it was clarified that a PSU is to take specific exemption if it does not want to enhance the retirement age. By a Memo dated May 9, 2000, the Government of India had informed that the proposal for rolling back of the age of retirement in respect of some sick unviable PS Us for rehabilitation/revival package were under consideration. In such cases, the Board of Directors should review the decisions on the rationale of the age of retirement and make suitable recommendation to the administrative -Ministry/Department for taking approval of the Cabinet. In a Memo dated October 17, 2000, it was pointed out that in case the PSU is unable to generate sufficient resources for meeting expenditure on account of salary and wages and is required to seek budgetary support, in that event, it should reconsider the question of rolling back of the age of retirement.

7.2. Accordingly, in a meeting dated December 27, 2000, the matters were considered for rolling back of the age, after analyzing the notes produced. Siva Mitra, however, pointed out from this note, that in the said note, it was recorded that it would be counter productive to reduce the present manpower. The said decision was taken subject to approval of the Government of India. However, the approval was so granted. On April 24, 2001, notices were accordingly given to the members of the Petitioner, who have attained and are about to attain the age of 58 years, to retire. An interim order was granted on April 30, 2001 to the extent that in case the Petitioner succeeds, they would get the benefit of service and be compensated monetarily.

Can the retirement age be rolled back:

In this backdrop, we may now examine as to how the matter had proceeded. In a letter dated August 21, 1998 contained in Annexure ''R-10'' by a Office Memorandum, it was pointed put that in case a PSU does not want to enhance the retirement age, it has to take specific exemption. However, no exemption was obtained. The retirement age was enhanced by BCL.

8.1. It appears from the Memo dated May 9, 2000, that the sick unviable PS Us, for Which rehabilitation or revival packages were under consideration, a proposal for rolling back of age of retirement was*under consideration. In such cases the company can review its decision. It can roll back the age to 58 years with the approval of the Cabinet, which was relaxed through Annexure ''R-11''. The question of maintaining the retirement age at 60 years was to be supported by generating its own resources without budgetary support, as was pointed out in the memorandum dated October 17, 2000. In the said memorandum, it was pointed out that there are certain PS Us, which were unable to generate it own resources, even for meeting the expenditure on account of salary and wages of their employees and have to seek budgetary support on this account. In such a situation, such PSU may take initiative to reduce the retirement age to 58 years in order to economize their wage bill.

8.2. Subsequently, on January 1, 2001 (Annexure ''R-11'') by a Office Memorandum, the Ministry of Heavy Industries the procedure for rolling back the age of retirement of employees of sick/unviable PS Us, for which rehabilitation/revival packages are under consideration, has been laid down. The procedure included taking the approval of the Cabinet. The issue whether approval of Cabinet is necessary, had since been reconsidered. It was then decided that such proposal for rolling back of age of superannuation from 60 years to 58 years in PSU covered under the Office Memorandum dated May 9, 2000, which are duly approved by the Board of Directors and also the Ministers in charge of the administrative Ministry, need not be brought before the Cabinet. Therefore, it can be done without the approval of the Cabinet. However, Mr. Mitra has not raised any issue with regard to this question.

8.3. This question was reviewed by BCL, which is apparent from Annexure ''P-6''. From this report, it appears that the company will not need budgetary support if the retirement age is retained at 60 years. It is further pointed out that the reduction of manpower would create imbalance of trade and severe production disruption. However, recruitment is to be made in order to meet the needs. Much has been made out of. this document by Mr. Mitra and pointed out that judging from this report, by no stretch of imagination, according to Mr. Mitra, the decision can be said to be bona fide. On the face of such report, if a decision to roll back the age is taken, it definitely had been a result of some decision, which cannot be said to be bona fide. On the other hand, it can be said that it must have been taken on extraneous consideration.

8.4. In decision in Tyre Corporation of India ( Supra), the Learned Single Judge had taken the view that in respect of Kankinara unit of the said Corporation, no budgetary support was required for meeting the salary and wage bill and that other two units of the said two corporations were decided to be closed and, therefore, the decision to roll back the retirement age was not bona fide. Various decisions cited by the parties have also been gone into. Now it is to be seen whether the decision in that judgment binds the present case. In fact, unless there are some distinguishing features, the decision is binding. This Court sitting singly cannot differ with the other decisions. If there are reasons to differ, in that event, it has to be referred to a larger Bench.

8.5. In the present case, on the face of the report Annexure ''P-6'' in the reply which is dated December 27, 2000, it can very well be said that the Board has not followed the decision according to the instructions contained in Annexure ''P-4'' of the reply being memo dated May 9, 2000 and October 17, 2001. But it may be noted that it was an agenda given by the acting company Secretary. The said note may be a foundation, but it is the Board, which has to take into consideration the relevant factors. The agenda note given by the company Secretary is not binding on the Board. The agenda note cannot be treated to be sacrosanct. The decision taken at the Board level is a decision involved in the administration. It is being taken by the Board having the expertise to take appropriate decision. It is a matter of policy. Admittedly, the unit is being sought to be revived.

Parameters of the OM for rolling back ; How far followed:

The Government of India in its Office Memorandum (OM) dated May 9, 2000 had pointed out that the proposal for rolling back of the age of retirement in case of sick unviable PS Us, for which rehabilitation/revival packages are under consideration, it was decided that the Board of Directors of title concerned company shall review its decision on the raising of age of retirement and make suitable recommendation to the administrative Ministry/Department for taking approval of the Cabinet. The procedure for seeking approval of the Cabinet was subsequently dispensed with in such a case, as is apparent from OM dated January 1, 2001 (Annexure"� Fill'') "issued by the Government of India. In OM dated October 17, 2000, it was clarified that those PS Us, which are unable to generate sufficient resources to meet the expenditure oh account of salary and wages and are required to seek budgetary support, on this account, may require the rolling back of the age. No Cabinet approval need be-necessary for such rolling back. The approval of the administrative Ministry/ Department or of the Minister-in-charge would be sufficient as was spelt out in the OM dated January 1, 2001.

9.1. It may be noted that in 1995 the company became sick and was referred to the BIFR. A scheme was formulated by the BIFR. In the said scheme, the retirement age was fixed at 58 years. It was categorically provided in the said scheme that continuation of any employee after attaining the age of 58 years can only be in exceptional circumstances and not as a general rule (Annexure ''R-3''). Since BGL was under BBUNL and the department of PSE having taken a policy of raising retirement age to 60 years, it was so raised, which was also approved by BIFR. The decision to roll back was taken in view of the financial impact on the unit to. In fact, it was pleaded in para. 3.14 of the Affidavit-in-Opposition that the continuation of enhanced retirement age would make the unit financially unviable. The Board has taken a policy decision having regard to the facts and circumstances of the case.

9.2. From the Directors Report contained in Annexure ''P-5'', it appears that the company had registered a net profit of Rs. 8,227.54 lakhs due to increase production coupled with reduction of employment and other establishment costs. But, this was due to the waiver of interest during the year 1996-97 amounting to Rs. 8,159 lakhs accrued on Government loans up to March 31, 1995, as envisaged in the rehabilitation scheme sanctioned by BIFR. From the said proposition, it appears that there was, in fact, a profit of 68 lakhs. Similar waiver was also made in 1997-98. In 1997-98, the waiver was 62.32 lakhs while the profit was 276.37 lakhs. Therefore, there was a net profit of 214-05 lakhs. But, from the note, it appears that this was shown prior to waiver of interest on bank loans amounting to Rs. 0.62 crores considering the said waiver of interest. But ultimately, it appears in 1998-99 the company had made a profit of Rs. 41.14 lakhs whereas in 200 CT 2001, the profit is Rs. 174 lakhs. Therefore, it appears that even without waiver of interest, the company had been making profits. The company in its opposition has not disclosed as to what prompted the Board to take the decision to roll back the retirement age. When from the Directors Report (Annexure ''P-5'') and the Agenda Note, it has been specifically mentioned that such rolling back in retirement age will bring down the manpower severely disrupting the production. It was incumbent on the Respondents to spell out the reasons for taking a decision, which is apparently contrary on the face of the Directors Report and the agenda Note. No reason has since been put forth, nothing has been produced by the Board to show that there were economic and administrative reasons for taking a decision contrary to the Agenda note or the Directors Report. On the face of it, it shows that the company was making profit and it was not an unviable unit. In view of the making of profit, there is nothing to indicate that the BCL would be requiring budgetary support to meet the wage bills. In Tyre Corporation of lndia, a distinction has been recognized between wage bill and Government grants to meet statutory dues. Therefore, unless it is shown that this decision is taken since the unit was becoming unviable or that it needs budgetary support to meet its salary or wage bill or any other cogent reason, which will justify taking of such a decision having regard to economic and administrative reasons, the decision can very well be examined and interfered with. Neither in the Affidavit-in-Opposition nor in any of the documents produced, such a ground has been spelt out by the Respondents.

Extent of Court''s power to interfere:

Having regard to this backdrop, we may now examine the scope of interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India with regard to such policy decisions.

10.1. In this background, now let us examine as to how far this Court can interfere. The Court is not supposed to-be an expert with regard to the accounting and other economic matters. All the materials are not placed before it. Some excerpts are being placed before this Court. The Court is not supposed to scrutinize it and enter into the merits of it. In BALCO, this question was raised and was examined by the Apex Court from, various angles having reference to the various decisions operating in the field.

10.2. In Rustom Cavasjee Cooper Vs. Union of India (UOI), the Apex Court had held:

It is again not for this Court to consider the relative merits of the different political theories or economic policies�. This Court has the power to strike down a law on the ground of want of authority, but the Court will not sit in appeal over the policy of the Parliament in enacting of law�.

10.3. In Fertilizer Corporation Kamgar Union (Regd.), Sindri and Others Vs. Union of India (UOI) and Others, the Apex Court had held:

�We certainly agree that judicial interference with the administration cannot, be meticulous in our Montesquien system of separation of powers. The Court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. If the Directorate of a Government company has acted fairly, even if it has faltered in its wisdom, the Court cannot as a super-auditor, take the Board of Directors to task. This function is limited to testing whether the administrative action has been fair and free from the taint of unreasonableness and has substantially complied with the norms of procedure set for it by rules of public administration.

10.4. In State of M.P. and Others Vs. Nandlal Jaiswal and Others, , it was held that Court would be slow to interfere with policy of the State, particularly, in respect of matters of economic policy unless it is shown plainly arbitrary, irrational or mala fide. In R.K. Garg v. Union of India AIR 1981 S.C. 2138, it was held that there should be some space to play in their joints by the administration or legislature, ad the case may be, to deal with complex problems, which do not admit of solution through any doctrinaire or straitjacket formula, particularly, with regard to economic matters.

10.5. In G.B. Mahajan and others Vs. The Jalgaon Municipal Council and others, it was observed:

�The criticism of the project being ''unconventional'' does not add to or advance the legal contention any further. The question is not whether it is unconventional by the standard of the extent practices, but whether there was something in the law rendering it impermissible. There is, no doubt, a degree of public accountability in all governmental enterprises. But the present question is one of the extent and scope of judicial review over such matters. With the expansion of the State''s presence in the field of trade and commerce and of the range of economic and commercial enterprises of Government and its instrumentalities there is an increasing dimension to Governmental concern for stimulating efficiency, keeping costs down, improved management methods prevention of time and cost overruns in projects, balancing of costs against time scales, quality control, cost-benefit ratios etc. In search of these values It might become necessary to adopt appropriate techniques of management of projects with concomitant economic expediencies. These are essentially matters of economic policy, which lack adjudicative disposition, unless they violate constitutional or legal limits on power or have demonstrable pejorative environmental implications or amount to clear abuse of power. This again is the judicial recognition of administrator''s right to trial and error, as long as both trial and error are bona fide and within the limits of authority�.

10.6. In Peerless General Finance and Investment Co. Limited and Another Vs. Reserve Bank of India, the apex Court held that Courts are not to interfere with economic policy, which is the function of experts. It is not the function of the Courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters, even expert can seriously and doubtlessly differ, the Courts cannot be expected to decide them without even the aid of experts.

10.7. In Premium Granites and Another Vs. State of Tamil Nadu and Others, it was held:

It is not the domain of the Court to embark upon un-chartered ocean of public policy in an exercise to consider as to whether the particular public policy is wise or a better, public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities as the case may be�.

10.8. In Delhi Science Forum and others Vs. Union of India and another, it'' was held:

�The national policies in respect of economy, finance, communications, trade telecommunications and others have to be decided by Parliament

and the representatives of the people on the floor of the Parliament can challenge and question any such policy adopted by the ruling Government�.

10.9. In M.P. Oil Extraction and Another Vs. State of M.P. and Others, it was held that unless the policy framed is absolutely capricious and not being informed by any reason whatsoever can be clearly held to be arbitrary and founded on mere Ipse dixit of the executive functionaries thereby offending Article 14, the Court cannot and should not out step its limit and tinker with the policy decision of the executive functionary of the State. The policy decisions are in the domain of the executive authority. Court should not embark on the un-chartered ocean of public policy and should hot question the efficacy or otherwise of such policy so long the same does not offend any provision of the statute or the Constitution. In State of Punjab and Others Vs. Ram Lubhaya Bagga Etc. Etc., the Apex Court has also taken the same view. Same view was taken in Bhavesh D. Parish and Others Vs. Union of India and Another, wherein Court was cautioned not to deal with economic decisions. Similar view was taken in Narmada Bachao Andolan Vs. Union of India and Others, .

10.10. After considering all these questions, the Apex Court in BALCO had laid down that:

Courts have consistently refrain from interfering with economic decisions as it has been recognized that economic expediencies, lack adjudicative disproportion and unless the economic decision based on economic expediencies is demonstrated to be violative of Constitutional or legal limits on power or was averment to reasons, the Court should decline to interfere. The Government while taking a decision has a right to trial and error as long as both trial and error are bona fide and within the limits of authority. In this case, it is pointed out that the decision is capricious, arbitrary, illegal or uninformed. The discussion as made above, it cannot be said that the decision is capricious, arbitrary, illegal or uninformed.

10.11. The Bombay High Court in S.J. Shetty (Supra) while dealing with similar roll back has upheld the same and has not interfered with. But the facts of the said case are distinguishable form the one, with which we are concerned as discussed hereafter.

10.12. In Ramana Dayaram Shetty v. The International Airport Authority of India and Ors. (Supra), it was held that a decision though taken within the competence of the authority, still it can be examined as to whether it has been taken bona fide. An executive authority must rigorously hold to the standard by which it profess its action to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. In Bangalore Medical Trust v. B.S. Muddappa lSupra), it was laid down that existence of power, which bestows discretion on the authority, envisages that the discretion exercised, must have been backed by substantive rationality, it must not be a pretext to justify the arbitrary or illegal exercise of power. They must withstand the scrutiny of validity and free from arbitrariness. In Shrilekha Vidyarthi (Kumari) v. State of Uttar Pradesh and Ors. {Supra), the Apex Court had observed that even a policy of the Government can be subjected to scrutiny. Such decisions must satisfy the test of reasonableness. The sweep of Article 14 will also include a policy decision. A State action is required to qualify itself for its validity on the touchtone of Article 14 irrespective of the field of activity! It must be informed by reasoned action, must be formed by reasons and such actions can be questioned as arbitrary in any proceedings under Article 226 of the Constitution of India. In Union of India and Ors. v. Dinesh Engineering Corporation and Anr. (Supra), it was held that in case certain materials are overlooked and not taken into consideration, in that event, a decision taken by the State cannot be sustained. In Tyre Corporation of India Officers'' Association v. Union of India and Ors. (Supra), on a similar question this Court had held that the rolling, back was unsustainable and was accordingly quashed. In Secretary of State for Education and Science v. Metropolitan Borough of Tameside (Supra), it has been laid down that the Court has every right to go into the question even in respect of a policy decision and find out whether the facts in existence was taken into account, A discretionary power vested in the authority is subject to Court''s power to review. In such exercise, the Court can find out whether the discretion is real or in genuine.

The ratio summarized:

The sum total of the ratio led down in the decision discussed above boils down to the following effect viz:

(a) The Court must be circumspect in its approach, before interfering . with a policy decision adopted administratively, to address itself as to whether it relates to economic administrative decision aimed at stimulating efficiency, keeping costs down, improved management methods, balancing of costs against time scales, source of resource, cost benefit ratio, which are essentially matters of economic policy lacking adjudicative disposition,

(b) It has also to remind itself of the judicial recognition of administrator''s right� to trial and error so long it is bona fide and within the limits of administrative competence,

(c) It cannot compare such policy as to whether there could be wiser or better policy,

(d) When the decision is an outcome of a fair action, even if faltered in wisdom, Court cannot play the role of super auditor,

(e) Whether it is fair and free from the taint of unreasonableness or it is arbitrary and founded on mere ipse dixit of the executive functionary,

(f) The Court must remind itself that it cannot out step its limit and tinker with policy decision, nor it can attempt to assess the efficacy or otherwise of such policy�.

11.1. The scope of interference, if circumstances permit, may be summarized thus: (a) A policy decision can be examined to the extent whether it had suffered from non-application of mind and arbitrariness. If it is so, in that event, it is subject to judicial review. The question of arbitrariness arises when a policy decision is taken without considering the relevant fact, (b) Arbitrariness even in policy decision is included within the sweep of Article 14, requiring every State action to be tested on the touchstone of the said Article, irrespective of the field of activity and that the same must be informed by reasons, (c) The manner in which the power is exercised can be scrutinized by the Court in order to justify the arbitrary or illegal exercise of the power, (d) The executive authority must be rigorously held to the standard, by which it professes its action to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them.

Ratio applied:

In the present case, as discussed above, despite the materials being the Directors Report (Annexure ''P-5'') and the Agenda Note (Annexure ''P-6''), a decision has been taken absolutely contrary thereto. The first ground on which age can be rolled back is that the unit cannot meet the expenditure on account of salary and wages and is becoming unviable. The second factor is that the unit must need budgetary support to meet its salary and wage bills. Unless these two conditions are satisfied, there cannot be any justification of rolling back of the age in terms of OM dated May 9, 2000, October 17, 2000 and January 1, 2001. Thus, on the face of it, it appears that the decision cannot be supported and appears to be wholly arbitrary and an outcome of non-application of mind. The Respondents had never attempted to rebut the situation. On the materials produced, the Court has every right to presume arbitrariness unless rebutted by the Respondents.

12.1. There is no attempt to justify the decision on account of any economic reasons or any administrative reasons. On this score also, it cannot be supported even though it is alleged to be a policy decision. True it is, that a policy decision is beyond adjudicative disposition of the Court (Para. 11a). Whether the decision is erroneous or not can also be examined (para. 11b). Admittedly, the decision if supported by the guidelines laid down in para. 11, then it cannot be said to be incompetent. Inasmuch as, as recognized in Dr. S.L. Agarwal Vs. The General Manager, Hindustan Steel Ltd., ; N. Lakshmana Rao v. State of Karnataka AIR 1975 S.C. 1648; K. Nagraj v. State of A.P. A.1.R. 1985 S.C. 551 the Board is competent to take such a decision. However, such decision can be scrutinized by the Court within the parameters of the principle as summarized in paras. 11 and 11.1. The materials that has been produced, does not lead this Court to conclude that there is a bona fide in the decision on the face of the materials (Annexure ''P-5'' and ''P-6''). It is not a case whether a wiser or better decision could be taken, it is not a case of trial and error. Having regard to Annexure ''P-5'' and ''P-6'', it can conclusively be presumed absence of fairness, which has not at all been attempted to be rebutted by the Respondents. The Respondents have taken shelter to the protection of a policy decision alone, without spelling out any ground to prevent this Court from applying the principle of interference by Courts with regard to policy decisions (para. 11.1). True, this Court cannot compare the decision and substitute its one views. In this case, there is no reason to compare or substitute Court''s views. This question would have been material, if there was any attempt to justify reasons from being held arbitrary, unreasonable, absence of bona fide. It is also not a case of a faulted decision in order to prevent this Court from assuming the role of Super Auditor and find fault and interfere. Inasmuch as, in the present case, it is apparent on the face of the materials available on record, particularly in the absence of any attempt on the part of the Respondents to rebut the same. The materials available impel the Court to presume unreasonableness. This Court is compelled, having regard to the materials placed before it, to hold that the decision suffers from the ipse dixit of the executives. The Court was never invited to prevent itself from out-stepping its limit on any of the grounds, which have been recognized by the Apex Court in the series of the decision as discussed above. This Court is not called upon the question the efficacy of the decision since on the face of the arbitrariness, absence of bona fide. Economic or administrative reasons have never been sought to be put forth by the Respondents as a ground to support the decision, when on the face of the record (Annexure ''P-5'' and ''P-6''), the ground supporting the unreasonableness, arbitrariness, absence of bona fide, fairness are staring on the face of the Respondents.

12.2. In the present case, it does not appear that the Board had taken into account the relevant factors mentioned in the Directors Report or the Agenda Note. It has not produced any material to support the decision. The justifiability of the decision can be questioned, since it does not appear that there was any application of mind to the extent as to what prompted rolling back of the age of superannuation.

12.3. From the materials, it does not appear that the Respondents Board had applied its independent mind and had taken an independent decision. It had merely followed the decision of the department of PSE without taking a decision having regard to the situation in BCL.

Conclusion:

In the facts and circumstances of the case as discussed above, having regard to the principle of interference with the policy matters by Courts, it is apparent that the decision suffers from all the infirmity under which it is open to scrutiny by the Court and be interfered with within the limits circumscribed by the ratio laid down by the Apex Court as discussed above.

Order:

In these circumstances, this writ petition succeeds and is accordingly allowed. The impugned decision to reduce to retirement age is hereby quashed and the notices to retire impugned in the writ petition are also hereby quashed. The Petitioner shall not be compelled to retire before attainment of 60 years, unless any fresh decision is taken hereafter. However, this order will not prevent the Respondents to take a. fresh decision having regard to the principle laid down hereinbefore vis-a-vis the justification of such rolling back having relevance to the situation prevailing in BCL.

There will be, however, no order as to costs.

Xerox plain copy of the operative part of this judgment be given to the respective parties on usual undertaking.