Sh. R.B. Chauhan vs Food Corporation of India and Another

Sanjay Kishan Kaul, J.—The appellant joined the Department of Food of Government of India in the year 1960 and on formation of Food Corporation of India (''FCI'' for short), his services were transferred to it in the year 1966. The appellant was working as an Assistant Grade-I (Depot) when he was compulsorily retired from service on 26/27.12.1988. The petitioner aggrieved by the said order filed Civil Writ Petition No. 3598/93 which has been dismissed as per the impugned order dated 23.03.2006.

The first submission of learned Counsel for the appellant is that an officer who passed the order of compulsory retirement of the appellant was not the competent authority. This plea is predicated on the factual averment that the promotion of the appellant to the post of an Assistant Grade-I (Depot) was passed by the Zonal Manager while the order for compulsory retirement has been passed by the Senior Regional Manager, which is a lower authority. Learned Counsel seeks to support this contention on the basis of an order passed by the Allahabad High Court in WP(C) 1391/1992 Makhan Singh v. FCI on 03.03.1992. It was held in that case the Order of compulsory retirement passed by the Senior Regional Manager in respect of that petitioner who was holding the post of Assistant Grade-II was not sustainable as the Senior Regional Manager was lower in rank than the ''appointing authority'' for that post as per the FCI (Staff) Regulations, 1971 (''the Regulations'' for short).

The aforesaid aspect has been examined by the learned Single Judge in para 12 of the impugned order. It has been found that the ''appointing authority'' for the post held by the appellant was the originally the Zonal Manager but the position changed on account of the amendment to the Regulations effected from 16.10.1987 when the power was conferred on the Senior Regional Manager. It was observed that the appellant not being a public servant was not entitled to invoke the protection under Article 311 of the Constitution of India. The learned Single Judge relied upon the observations made by the Supreme Court in State of Bank of India Vs. S. Vijaya Kumar, and Ramesh Hirachand Kundanmal v Municipal Corporation of Greater Bombay, 1992 (2) SCC 224 to come to the conclusion that the imposition of penalty can be considered valid even if the official is lower in rank than the original authority who appointed him so long as it is permissible in terms of the Regulations. We find no infirmity with the said finding and take note of the fact that the judgment in Makhan Singh v. FCI''s case (supra) has not examined the effect of the amendment to the Regulations. This is material since it is as per the amendment that the Senior Regional Manager acquired the powers which were earlier vested with the Zonal Manager.

The second aspect urged by learned Counsel for the appellant is the absence of enquiry or charge sheet in respect of the charges which formed the basis of premature retirement of the appellant and thus the impugned order not being in accordance with law as the record of the appellant was not considered while passing the order of compulsory retirement.

Leaned Single Judge has considered Regulation 22 of the Regulations in para 15 of the impugned order which permits the appropriate authority an absolute right to pass an order of compulsory retirement if in its opinion such an action is in the interest of FCI. The learned Single Judge has thereafter proceeded to consider various pronouncements of the Supreme Court to conclude that an order of compulsory retirement is not an order of punishment but should be based on the material on record. Thus, an objective view of the overall performance of the officer has to be taken into account. In para 20 of the impugned order, the learned Single Judge has noted that the records relating to the appointment of the appellant had been produced where all the relevant ACRs were considered and found that there were several ACRs which could lead to a conclusion that the appellant had outlived his utility for the respondent- Corporation.

The appellant has faced five disciplinary proceedings apart from the aspect of ACRs but two of them culminated in imposition of penalties on the appellant.

In view of the aforesaid, we are of the view that the learned Single Judge has rightly found the present case is not one of absence of material or material not justifying a reasonable inference that

the appellant''s services ought not to be continued in public interest.

There being no other aspect urged and there being absence of infirmity in the reasoning adopted by learned Single Judge, we see no reason to interfere in appeal.

Dismissed.