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2001 DIGILAW 605 (ALL)

BHOOP NARAIN TEWARI v. UPTRON INDIA LTD.

2001-07-03

R.P.NIGAM, S.H.A.RAZA

body2001
S. H. A. RAJA, J. ( 1 ) THE U. P. Electronics Corporation Limited Is a Government undertaking, which is registered under the Indian Companies Act, 1956. M/s. Uptron India Limited is a subsidiary company of u. P. Electronics Corporation Limited. ( 2 ) LATE Sri Shakeel Ahmad Malik, the petitioner of Writ Petition Bearing No. 627 (SB) of 1996, who at the relevant time was holding the post of Executive Officer, Sri Sultan Haider, the petitioner of Writ Petition Bearing No. 758 (SB) of 1996, who was holding the post of Deputy manager, CMD-1, and Sri Bhoop Narain Tewari, the petitioner of Writ Petition Bearing No. 921 (SB) of 1996, who was holding the post of Assistant Manager (Accounts), EF-VI in Uptron India limited, have assailed the order of compulsory retirement dated 20. 6. 1996 by filing the aforementioned writ petitions. ( 3 ) DURING the pendency of the writ petition. Sri Shakeel Ahmad Malik expired. His name was deleted from the array of the parties and in his place, the names of his widow Smt. Kishwari bano, his sons. Mussarat Hussain Malik, Sarfaraz Hussain Malik and two daughters, Shalya bano and Ayesha Fatima Shabnern, who was the minor daughter of late Sri Shakeel Ahmad malik is under the guardianship of her mother Smt. Kishwari Bano were substituted as petitioners No. 1/1 to 1/5. ( 4 ) THE impugned orders, which have been challenged in the writ petitions, passed by Sri R. K. Singh. Managing Director. Uptron India Limited, which indicate that the petitioners have attained the age of more than 50 years. Their service record was placed before a duly constituted screening Committee for consideration. The screening committee went through the entire service record and ACR ratings of the past four years and observed that their performance during the last four years had a downfall and was "below average". ( 5 ) REGARDING late Sri Shakeel Ahmad Malik, the Screening Committee mentioned that he had been in the habit of absenting himself in an unauthorized manner. Regarding Sri Sultan Haider, the Screening Committee observed that performance of Sri Sultan Haider during the last two years had a downfall and was "below average" and he was also warned for certain gross negligence on his part. Regarding Sri Sultan Haider, the Screening Committee observed that performance of Sri Sultan Haider during the last two years had a downfall and was "below average" and he was also warned for certain gross negligence on his part. Regarding Sri Bhoop Narain Tewari, the Screening Committee observed that performance of Bhoop Narain Tewari for the last two years had a downfall and was "below average". He was also awarded punishment for certain lapses of serious nature on his part in september, 1992 and was also warned in May, 1995, for certain act of indiscipline. The screening Committee recommended to compulsorily retire all the three petitioners. ( 6 ) SRI R. K. Singh, Managing Director of Uptron India Limited in the impugned order indicated that the recommendations of the Screening Committee have been accepted and in the interest of company and in public interest, the petitioners are being compulsorily retired with effect from 30. 6. 1996 (afternoon ). Accordingly they have ceased to be in the employment of the company with effect from 30. 6. 1996 (afternoon ). They will be entitled to three months salary and allowances in lieu of the notice period, and a demand draft was attached with the office order, which they may collect from the Accounts Department of the company and to complete the no dues formalities for final payment of their dues. ( 7 ) ON 23. 4. 1994, the U. P. Electronics Corporation Limited/ Uptron India Limited, Lucknow made the following changes in the company Rules with immediate effect, which is reproduced below : " (a) The appointing authority may at any time by notice to any employee without assigning any reason, require him to retire after he attains the age of 50 years or such employee may by notice to the appointing authority voluntarily retire at any time after attaining the age of 50 years. (b) The period of such notice shall be 3 months or 3 months pay. If the order of compulsory retirement is short of 3 months notice the employee shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of three months or for the period by which such notice falls short of 3 months at the same rate at which he was drawing immediately before his retirement. (c) It shall be open to the appointing authority to allow an employee to voluntarily retire without giving any notice but in that case the employee will have to surrender 3 months pay and allowances or for the period for which the notice falls short of 3 months. " ( 8 ) BEFORE dealing with the question as to whether the order of compulsory retirement of the petitioners was in accordance with law or not, the factual matrix of each of the petitioners of the writ petition. In short compass, deserved to be enumerated. ( 9 ) LATE Sri Shakeel Ahmad Malik, the petitioner of Writ Petition Bearing No. 627 of 1996, on 1. 5. 1980 was appointed as Draftsman in Uptron India Limited. On 14. 5. 1981, he was confirmed in the service after completing successful one year period of probation. On 1. 5. 1981, he was given an award in appreciation of his hard and sincere working in achieving the difficult targets, for that reason, he was given increments on 18. 6. 1981, 17. 7. 1981 and 24. 5. 1982. By means of the order dated 14. 7. 1982, late Sri Shakeel Ahmad Malik was promoted on the post of Senior draftsman with effect from 1. 7. 1982. He was given regular increments, but for his good performance, on 8. 9. 1984, he was given an additional increment. On 1. 5. 1985, he was promoted as Senior Draftsman (C) for good performance on the recommendations of Departmental promotion Committee. On 25. 3. 1986, Sri P. C. Agarwal, Manager Uptron India Limited, addressed a letter to late Sri Shakeel Ahmad Malik appreciating his devotion and sincerity towards his work. On 5. 11. 1986. 30. 7. 1987, the Manager, Uptron India Limited granted him a cash award of Rs. 500 for his good performance. On 19. 7. 1989, for good performance and on the recommendations of the Departmental Promotion Committee, late Sri Shakeel Ahmad Malik was given one additional increment. On 13. 2. 1991, in view of the good performance of late Sri shakeel Ahmad Malik, the management promoted him as engineer with effect from 1. 10. 1990. On 4. 10. 1991, late Sri Shakeel Ahmad Maliks services were confirmed as engineer with effect from 1. 10. 1991 and the management also sanctioned him an increment in the pay-scale of Rs. 2,000-60-2,300-EB-75-3,200-100-3,600 raising his basic pay from Rs. 2. 10. 1990. On 4. 10. 1991, late Sri Shakeel Ahmad Maliks services were confirmed as engineer with effect from 1. 10. 1991 and the management also sanctioned him an increment in the pay-scale of Rs. 2,000-60-2,300-EB-75-3,200-100-3,600 raising his basic pay from Rs. 2. 750 per month with effect from 1. 10. 1991. On 15. 10. 1992, he was awarded an increment of Rs. 75 with effect from 1. 10. 1992. ( 10 ) IN the year 1993, late Sri Shakeel Ahmad Malik worked for 275 days, although he has earned 99 days Earned Leave and left 37 days Medical Leave and 14 days Casual Leave. In the year 1994, late Sri Shakeel Ahmad Malik had 14 days Casual Leave. 107 days Earned Leave and 16 days Medical Leave and he worked for 244 days in that year. In the year 1995, late Sri Shakeel ahmad Malik worked for 280 days 1/2. He had 119 days of Earned Leave. 25 days of Medical leave, which is still remained, which he did not avail. In the year 1996. late Sri Shakeel Ahmad malik worked for 272 days, although 120 days of Earned Leave. which was not availed by late sri Shakeel Ahmad Malik. On 11. 10. 1993. 7. 7. 1994 and 14. 7. 1995. late Sri Shakeel Ahmad malik was granted increments of Rs. 75 with effect from 1. 10. 1993. 1. 7. 1994 and 1. 7. 1995. ( 11 ) ON 20. 6. 1996, late Sri Shakeel Ahmad Malik attained the age of 50 years and one month till 31. 3. 1996, he was ordered to be compulsorily retired for the reason that his performance during the last four years had a downfall and was "below average" and he was in habit of absenting himself in an unauthorised manner. ( 12 ) SRI Sultan Haider. petitioner of Writ Petition Bearing No. 758 (SB) of 1996, was initially appointed on 30. 7. 1980 on the post of Material Officer in the company on probation for a period of 12 months, which may be extended from time to time. On 12. 8. 1981, as the performance of sri Sultan Haider was found satisfactory, he was confirmed on the post with effect from 1. 8. 1981 and sanction was accorded to grant him the annual increment of Rs, 30 per month in his basic salary. On 22. 8. On 12. 8. 1981, as the performance of sri Sultan Haider was found satisfactory, he was confirmed on the post with effect from 1. 8. 1981 and sanction was accorded to grant him the annual increment of Rs, 30 per month in his basic salary. On 22. 8. 1983, the management after reviewing the performance and contribution made by Shri Sultan Haider gave him two merit increments of Rs. 30 per month with effect from 1. 7. 1983. On 30. 8. 1984, the management promoted Sri Sultan Haider as Assistant Manager (Materials) with effect from 1. 7. 1984. On 29. 9. 1984. Sri Sultan Haider was transferred to Uptron control Systems with effect from 15. 8. 1984, but later on 15. 7. 1985, it was decided by the management of the company to maintain the stains quo with regard to work place of Sri Sultan haider, he was directed to continue the same work, which Sri Sultan Haider was doing. During the course of the services, there was some difference between Sri Sultan Haider and Mr. Vikas chandra of technical nature, but whenever such differences arose, those were sorted out by the general Manager, who upheld the contention of Sri Sultan Haider. On 22. 12. 1989, while Sri sultan Haider was working as Assistant Manager (Materials), was transferred to Technology development Group to assist in procurement and alt other related functions. On 7. 4. 1992, while sri Sultan Haider was working as Assistant Manager (Materials), he was promoted on the post of senior Assistant Manager (Materials) on account of his performance in the grade of Rs. 3. 000-100-3. 500-125-4,500 at a basic pay of Rs. 3,400 per month with effect from 1. 7. 1991 for a period of 12 months on probation basis. On 19. 5. 1994, the General Manager directed that Sri sultan Haider will also look after the provisioning of shop supplies and packing materials. On 24. 7. 1992. the General Manager (Personnel) confirmed the services of Sri Sultan Haider on the post of Assistant Manager (Materials) with effect from 1. 7. 1992 and also sanctioned an annual increment of Rs. 100 in the pay scale of Rs. 3,000-100-3,500-125-4,500 raising the basic pay from Rs. 3,400 to Rs. 3,500 per month with effect from 1. 7. 1992. On 1. 7. 1995, the management was pleased to sanction an annual increment of Rs. 7. 1992 and also sanctioned an annual increment of Rs. 100 in the pay scale of Rs. 3,000-100-3,500-125-4,500 raising the basic pay from Rs. 3,400 to Rs. 3,500 per month with effect from 1. 7. 1992. On 1. 7. 1995, the management was pleased to sanction an annual increment of Rs. 125 of Sri Sultan Haider in the pay scale of rs. 3,000-100-3,500-125-4,500 raising the basic pay from Rs. 3,750 to Rs. 3,875 per month with effect from 1. 7. 1995. On 20. 7. 1996, when Sri Sultan Haider attained the age of 53 years and 4 months service on 31. 3. 1996 was ordered to be retired from service with effect from 30. 6. 1996. ( 13 ) SRI Bhoop Narain Tewary, the petitioner of Writ Petition Bearing No. 921 (SB) of 1996, on 17. 2. 1977, was appointed on the post of Accountant in U. P, Electronics Corporation Limited on probation for a period of one year. After the end of the probationary period. Sri Bhoop Narain tewary was confirmed on the post of Accountant. On 27. 11. 1979. on the basis of recommendations of the Departmental Promotion Committee, Sri Bhoop Narain Tewary was promoted on the post of Senior Accountant with effect from 1. 11. 1979. On 15. 6. 1981, on the basis of recommendations of the Staff Promotion Committee, the Managing Director of the U. P. Electronics Corporation Limited sanctioned two advance increments of Rs. 25 to Sri Bhoop narain Tewary with effect from 1. 7. 1982. On 10. 9. 1984, the Personnel Manager of U. P. Electronics Corporation Limited considering the good performance of Sri Bhoop Narain Tewary promoted him to the Accounts Officer in the scale of Rs. 550-30-700-40-900-50-1,100 at a basic of Rs. 670 with effect from 1. 7. 1984. On 19. 9. 1985, on account of good performance, the management of U. P. Electronics Corporation Limited granted one advance increment of Rs. 40 raising the pay from Rs. 700 to Rs. 740 per month with effect from 1. 7. 1985. On 14. 10. 1987. the senior Personnel Manager of U. P. Electronics Corporation Limited, considering the creditable performance of Sri Bhoop Narain Tewary sanctioned a merit increment in addition of his normal increment with effect from 1. 7. 1987. On 30. 6. 40 raising the pay from Rs. 700 to Rs. 740 per month with effect from 1. 7. 1985. On 14. 10. 1987. the senior Personnel Manager of U. P. Electronics Corporation Limited, considering the creditable performance of Sri Bhoop Narain Tewary sanctioned a merit increment in addition of his normal increment with effect from 1. 7. 1987. On 30. 6. 1989, considering the performance of Sri Bhoop narain Tewary, the management was pleased to promote Sri Bhoop Narain Tewary as Assistant manager (Accounts) in the grade of Rs. 800-50-1,450 at a basic pay of Rs. 950 per month with effect from 1. 7. 1989. On 23. 8. 1989, the services of Sri Bhoop Narain Tewary were transferred to control Systems Division. UIL, with immediate effect. On 28. 11. 1994, two increments of Sri bhoop Narain Tewary with non-cumulative effect were stopped due to certain lapses committed by Sri Bhoop Narain Tewary. On 12. 7. 1995. Sri Bhoop Narain Tewary requested the Chairman, u. P. Electronics Corporation Limited to transfer his services to the parent department, i. e. . Uptron India Limited. In the said letter Sri Bhoop Narain Tewary indicated (hat on 21. 2. 1994, he met with an accident of bullet injury in chest at his native place Sultanpur. Number of pellets were still lying in his chest. Due to that, he felt burning while walking more than a furlong. For such a long distance daily he can not go on foot to catch companys vehicle at main road from his residence. Similar letter was again written by Sri Bhoop Narain Tewary to the Managing director, U. P. Electronics Corporation Limited. The request of Sri Bhoop Narain Tewary did not find favour by the Manager (Personnel ). U. P. Electronics Corporation Limited, because there was no requirement at U. P. Electronics Corporation Limited. The letter also indicated that services of Sri Bhoop Narain Tewary were transferred to Uptron India Limited as per terms and conditions of his appointment, hence Sri Bhoop Narain Tewary should continue to work in uptron India Limited. On 20. 6. 1996, Sri Bhoop Narain Tewary was ordered to be compulsorily retired from service. The letter also indicated that services of Sri Bhoop Narain Tewary were transferred to Uptron India Limited as per terms and conditions of his appointment, hence Sri Bhoop Narain Tewary should continue to work in uptron India Limited. On 20. 6. 1996, Sri Bhoop Narain Tewary was ordered to be compulsorily retired from service. ( 14 ) THE thrust of the petitioners to assail the order of compulsory retirement are indicated below : " (1) The amended Service Rules regarding compulsory retirement of an employee without assigning any reason after attaining the age of 50 years is non-est inasmuch as it does not protect the minimum period of service as provided under Rule 56 (c) of the Fundamental Rules, meaning thereby, that in accordance with Rules, if a person, who was appointed at the age of 49, can also be compulsorily retired at the age of 50 years. (2) There existed no material to retire the petitioners compulsorily. (3) The Screening Committee has considered the old and stale warnings or lapses. It should not have been considered by the respondents. (4) The impugned orders are stigmatic in nature, because the petitioners were retired compulsorily on the ground of "down fall in performance" and "gross negligence". The Rule does not indicate "public interest" for purposes of initiating the proceedings for compulsory retirement (5) Unfettered, unbridled and uncontrolled powers are given to the management, without any guidelines to compulsory retire an employee. " ( 15 ) IN all the three writ petitions, counter-affidavits have been filed on behalf of the respondents, wherein it has been averred that the Uptron India Limited have become sick unit and the case of uptron lias been pending before the Board of Industrial and Financial Reconstruction (BIFR ). for calling out a final rehabilitation scheme for the company. In order to bring down its work force in accordance with the provisions of the Government Order, which are analogous to the office order No. 56 dated 23. 4. 1991, a list of 78 employees, who bad attained the age of 50 years were examined by the Screening Committee, duly constituted by the management of the Uptron to recommend the possibility of their voluntary and compulsory retirement from the service, keeping in view their ACR and performance for the last few years. 4. 1991, a list of 78 employees, who bad attained the age of 50 years were examined by the Screening Committee, duly constituted by the management of the Uptron to recommend the possibility of their voluntary and compulsory retirement from the service, keeping in view their ACR and performance for the last few years. ( 16 ) ACCORDINGLY, the Screening Committee after screening the entire service record of all such employees found the service record and performance report of six employees below the expected norms, therefore, the Committee recommended their compulsory retirement in accordance with the provisions laid down in the office order dated 23. 4. 1991 contained in Anncxure-1 of the writ petition. ( 17 ) IT was submitted in the counter-affidavits that the annual increments and promotions were made in normal course as a matter of routine, on the basis of seniority-cum-merit, which has no relevance with the performance and merit alone. The appreciation letters and cash awards were given on the eve of Holi festival to keep the morale of the employees high to achieve the production and productivity of the respondent company and as such the appreciation letter as welt as cash award was awarded to a large number of employees irrespective of their performance. ( 18 ) IT has been also averred in the counter-affidavit filed in Writ Petition Bearing No. 627 (SB)of 1996. that since late Sri Shakeel Ahmad Malik was the only Assistant Engineer (Inspector) in the unit, therefore, he was also awarded with appreciation letter and cash award so that none of the department of the division concerned be left or ignored. The case of late Sri Shakeel Ahmad malik was considered along with the other employees of his cadre, who were found meritorious and their performance was much superior to that of the petitioner, accordingly they were granted promotion within the span of 2-3 years. Since the petitioners performance was not upto the mark, therefore, instead of considering him for promotion within a span of 2-3 years of their last promotion, as was done in the case of other meritorious employees, the petitioner was given promotion after 5 years and that too since he was the only Assistant Engineer (Inspector) in the division, therefore, in spite of his inferior performance as a special case, he was allowed promotion on the post of Engineer. It was also averred in the counter-affidavit that he was in the habit of absenting unauthorisedly without information or without prior sanction of leave, but the management of the respondent company taking a lenient view, regularized the above unauthorized absence by granting of leave and released his deducted salary. ( 19 ) CONSIDERING the entire facts and circumstances of the case and also keeping in view the companys financial position, the management was of the firm view that due to the poor performance of late Sri Shakeel Ahmad Malik, he had become a dead wood and a burden on the company and there was no scope for development or improvement in him, in spite of several motivations and advices, which were given, and was not able to fulfil the contractual obligations, therefore, for administrative reasons as well as in the interest of respondent company, it was felt necessary to invoke the powers conferred vide office order dated 23. 4. 1991 contained in annexure-1 of the writ petition. Accordingly, the order of compulsory retirement of late Sri shakeel Ahmad Malik was passed, which is totally just, proper and legal. ( 20 ) IN Writ Petition Bearing No. 758 (SB) of 1996, filed by Sri Sultan Haider, the counter-affidavit indicated that the petitioner was holding a senior position in the company, but it was found that he was not performing his duties to the satisfaction of the management for the last few years. He was showing no interest or having initiative in discharge of his duties. The assignment of duly to the petitioner vide letter dated 12. 1 1. 1986, being contained in annexure-12 to the writ petition was a routine and procedural matter without any significance on his special assignment, which was done in view of the requirements of the work. ( 21 ) REFERRING to Annexures 13 to 17 of the writ petition, it has been averred that those annexures itself show that there was inefficiency and negligence on the part of the petitioner, white discharging his duties. The allegation of the petitioner that Sri Vikas Chandra. Material Manager was biased against the petitioner, was not supported with any documents, which clearly indicated the way of functioning of the petitioner and his negligence and carelessness towards work. The allegation of the petitioner that Sri Vikas Chandra. Material Manager was biased against the petitioner, was not supported with any documents, which clearly indicated the way of functioning of the petitioner and his negligence and carelessness towards work. Similarly it was stated that grant of promotion and grant of annual increment are routine matters and the same is granted along with other legible candidates on the basis of seniority cum merit, which has no relevance with the performance and merit alone. The management of the respondent company in view of keeping the morale of the employees high to achieve production and productivity of the company, a normal routine and procedural promotions and annual increments were granted to all the employees which has nothing to do with the performance and merit of the petitioner. The Screening Committee found while evaluating the performance of the petitioner that his functioning for the last two, three years was not satisfactory and upto the mark and the petitioner has lost initiative and interest in the discharge of the duties for which he had been advised and warned also, from time to time and his incompetence was also pointed out from time to time. ( 22 ) REGARDING Sri Bhoop Narain Tewary, the petitioner of Writ Petition Bearing No. 921 (SB) of 1996, it was averred in the counter-affidavit that the U. P. Electronics Corporation Limited as well as Uptron India Limited with its subsidiary production units were one body and the employees were governed by the same service rules and there was no difference in (heir service conditions as well and all the employees of the Corporation were working in the fully owned subsidiary production units only immediately after its incorporation. But it was submitted that u. P. Electronics Corporation Limited and Uptron India Limited both were incorporated under the Indian Companies Act. The petitioner was not sent on deputation to Uptron, but he was transferred to Uptron India Limited. Thereafter, the counter-affidavit has narrated more or less the same facts regarding the compulsory retirement of the petitioner, which have been averred in the counter-affidavits filed in two other writ petitions. ( 23 ) IN Moti Ram Deka and Ors. v. General Manager. North East Frontier Railway and Ors. Thereafter, the counter-affidavit has narrated more or less the same facts regarding the compulsory retirement of the petitioner, which have been averred in the counter-affidavits filed in two other writ petitions. ( 23 ) IN Moti Ram Deka and Ors. v. General Manager. North East Frontier Railway and Ors. AIR 1964 SC 600 , the Constitution Bench consisting of seven Judges of Honble Supreme Court in the last portion of Para 50 of the report observed : "apart from that, we think that if any Rule permits the appropriate authority to retire compulsorily a civil servant without imposing a limitation in that behalf that such civil servant should have put in a minimum period of service, that Rule would be invalid and the so-called retirement order under the said Rule would amount to removal of the civil servant within the meaning of Article 311 (2 ). " ( 24 ) AT page 3 of this judgment, we have reproduced the Rules, which does not impose a limitation with regard to minimum period of service referred by a public servant before he could be retired. The Rule indicated that only by a notice an employee can be retired after he attains the age of 50 years. Thus, it does not protect the minimum period of service as provided by Rule 56 (c) of the Fundamental Rules, meaning thereby ; that under the present Rules of the company, if a person, who was appointed at the age of 49 years, can also be compulsorily retired after attaining the age of 50 years. ( 25 ) IN a recent pronouncement of a Division Bench of Honble Supreme Court consisting of two honble Judges in U. P. State Mineral Development Corporation and Anr. v. K. C. P. Sinha. (1996) 5 SCC 111 , observed in paras 10. 11 and 12 of the report : "10. These observations regarding prescribing a minimum period of service have to be read in the light of the observations in Saubhagchand M. Doshi referred to above which have been approved and which refer to fixing of the age of compulsory retirement. The observations in moti Ram Deka were made in the context of the provisions of Rule 165a of the Bombay Civil services Rules, as amended by the Saurashtra Government, which was under consideration in saubhagchand M. Doshi. The observations in moti Ram Deka were made in the context of the provisions of Rule 165a of the Bombay Civil services Rules, as amended by the Saurashtra Government, which was under consideration in saubhagchand M. Doshi. It provided for compulsory retirement of a Government servant after he had completed 25 years of qualifying service or 50 years of age. In Saubhagchand M. Doshi the employee was appointed in 1948 and he was compulsorily retired on 30. 10. 1952, after 4 years service, under the said Rule since he had attained the age of 50 years. He had not completed the period of 35 years of qualifying service. The said order was upheld by this Court. The observations of this Court in Moti Ram Deka regarding the requirement of a minimum period of service cannot, therefore, be read to mean that a provision regarding compulsory retirement must always provide for a minimum period of service. In Moti Ram Deka what has been emphasized by this Court is that the validity of a rule providing for compulsory retirement may be open to question if having fixed a proper age of superannuation it permits a permanent servant 10 be retired at an early stage of his career. 11. This question came to be considered in Gurdev Singh Sidhu v. State of Punjab, in the context of Article 9. 1 of the Pepsu Services Regulations which provide that the Government could retire any Government servant after he had completed 10 years of qualifying service. The said rule was held to be invalid as being violative of Article 311 (2) of the Constitution. It has been observed : "if a permanent public servant is compulsorily retired under the rules which prescribe the normal age of superannuation and provide for a reasonably long period of qualified service after which alone compulsory retirement can be ordered, that again may not amount to dismissal or removal under Article 311 (2) mainly because that is the effect of a long series of decisions of this Court. But where while reserving the power to the State to compulsorily retire a permanent public servant, a rule is framed prescribing a proper age of superannuation, and another rule is added giving the power to the State to compulsorily retire a permanent public servant at the end of 10 years of his service, that cannot. But where while reserving the power to the State to compulsorily retire a permanent public servant, a rule is framed prescribing a proper age of superannuation, and another rule is added giving the power to the State to compulsorily retire a permanent public servant at the end of 10 years of his service, that cannot. we think, be treated as falling outside Article 311 (2 ). The termination of the service of a permanent public servant under such a rule, though called compulsory retirement, is. In substance, removal under Article 311 (2 ). 12. The High Court, in striking down clause (iv) of Rule 27 of the Rules, has placed reliance on the decisions of this Court in Mort Ram Deka and Gurdev Singh Sidhu v. State of Punjab, to hold that it was incumbent to prescribe a minimum period of service. In taking the said view the high Court failed to note that under Clause (iv) of Rule 27 of the Rules the power of compulsory retirement can be exercised only after an employee attains the age of 50 years. The normal age of superannuation prescribed under Rule 27 is 58 years. The fixation of the age of 50 years for the purpose of compulsory retirement does not result in compulsory retirement of an employee at an early stage of his career. As noticed earlier, there is a similar provision in Fundamental Rule 56 (f) which provides for compulsory retirement on attaining the age of 50 years or 55 years as mentioned in Col. J. N. Slnha and the orders passed for compulsory retirement under the said provision have been upheld by this Court. Similarly there are provisions where the power of compulsory retirement can be exercised either on attaining a particular age (generally 50 years)or on completion of the prescribed period of qualifying service and orders for compulsory retirement passed on attaining the prescribed age have been held to be valid as in Saubhagchand m. Doshi and T. G. Shivacharana Singh. In Saubhagchand M. Doshi the employee had been compulsorily retired on completion of about 4 years service only. In Saubhagchand M. Doshi the employee had been compulsorily retired on completion of about 4 years service only. We are, therefore, unable to agree with the view of the High Court that clause (iv) of Rule 27 suffers from the vice of arbitrariness and is violative of the provisions of Articles 14 and 16 of the Constitution inasmuch as it does not prescribe a minimum length of service for the exercise of the power of compulsory retirement. " ( 26 ) SENIOR counsel. Mr. S. K. Kalia, appearing on behalf of one of the petitioners in his argument. which was adopted by the counsel of other petitioners, submitted that the pronouncement of Honble Supreme Court in U. P. State Mineral Development Corporation and anr. (supra) and other case, which have been referred in paragraphs 10, 11 and 12, which are the judgments pronounced by lesser Judges, suffers from the vice of per incurium as those judgments are not in confirmity with Moti Ram Deka (supra) and insisted that the case, which has considered the law very elaborately, which was done in Moti Ram Deka (supra), should be relied upon. In that regard, he referred the Full Bench judgment of this Court in Canga Saran v. Civil Judge, Hapur, AIR 1991 All 114 (Paras 8 and 10 ). Mr. S. K. Kalla also stressed that it has been the view of Honble Supreme Court, which was reflected in State oj U. P. v. Ram Charan trivedi, 1976 (4) SCO 52 (Para 22), that the view of the larger Bench should prevail. ( 27 ) THERE is no doubt that the Constitution Benchs judgment consisting of seven Judges pronounced by Honble Supreme Court in Moti Rom Deka (supra) has dealt with the law very elaborately and the decision of Honble Supreme Court in U. P. State Mineral Development corporation (supra), was of lesser Judges and ft has also been the view of the Honble Supreme court that in case of any inconsistency, the view expressed by a large Bench should be accepted. But we need not delve into that question in the present writ petitions and the same can be decided on other questions. ( 28 ) GENERALLY this Court out of regard and respect to Honble Supreme Court and its Judges, does not give a verdict that the judgment of Honble Supreme Court does not lay down the correct law. But we need not delve into that question in the present writ petitions and the same can be decided on other questions. ( 28 ) GENERALLY this Court out of regard and respect to Honble Supreme Court and its Judges, does not give a verdict that the judgment of Honble Supreme Court does not lay down the correct law. The Judge of the High Court have imposed upon themselves a discipline to the effect that the judgment of Honble Supreme Court should be honoured and do not give a verdict that any judgment of the Honble Supreme Court suffers from the vice of per incurium. It is for the honble Supreme Court itself to consider that aspect of the matter in any appropriate case. ( 29 ) IN the impugned orders of compulsory retirement passed against the petitioners. It has been pointed out that the petitioners were retired compulsorily on the ground of downfall in performance" and in one case, the order refers the alleged act of gross negligence alleged to have been committed by one of the petitioners. ( 30 ) IN all the cases, the petitioners were given increments and were promoted and one or two petitioners were given awards and letter of appreciation. The contention that increments, promotions, awards and appreciation letters were issued in routine manner, cannot be accepted by this Court because when an officer, out of his performance, is promoted and given higher scale, whatsoever adverse against him was earlier, stands diluted. ( 31 ) ALTHOUGH, the principles of natural justice have no place in the context and compulsory retirement. but the judicial scrutiny is permissible, if the order is either arbitrary or mala fide or it is based on no evidence. In the present case, we have looked into as to whether there were valid material to arrive at a conclusion that the petitioners have outlived their utility or become a dead wood, to be chopped off. ( 32 ) AS far as late Sri Shakeel Ahmad Malik is concerned, it has been pointed out, that during the last four years, there had been a downfall (in his performance) and he was "below average" and he is in the habit of absenting himself in an unauthorized manner. In the counter-affidavit, it has also been averred that the petitioners performance immediately after his promotion with effect from 1. 10. In the counter-affidavit, it has also been averred that the petitioners performance immediately after his promotion with effect from 1. 10. 1989 was deteriorating, and that was one of the reasons for his compulsory retirement. No material has been placed before this Court, except what we will indicate hereinafter, to arrive at a conclusion that there was anything adverse, against late Sri Shakeel Ahmad Malik. It was also pointed out that on certain dates, he absented himself, without prior sanction of leave, and also indicated that after the petitioners tendered unconditional apology, the management took a lenient view, by regularising his absence by granting him leave and released his deducted salary. If the management has condoned the alleged absence by granting leave, which was due, the fault, if any stood removed and that cannot be said to be a relevant material for the purposes of retiring him compulsorily. ( 33 ) WE have already mentioned, while dealing with the case of late Sri Shakeel Ahmad Malik that during the course of his service, he did not avail all the Casual. Earned and Medical Leaves, which under Rules, he was entitled to avail, hence it cannot be said that late Sri Shakeel Ahmad malik was in the habit of absenting himself in an unauthorized manner. No material has been brought before this Court that late Sri Shakeel Ahmad Malik ever earned any adverse entry, warning or censor for any downfall in his functioning after he became the Engineer and was confirmed as such in the year 1990. He was given regular increment. which was never withheld and his basic salary was increased. The order dated 27. 4. 1994 indicated that as requested by late sri Shakeel Ahmad Malik, his leaves were sanctioned without any remark to the effect that it was done for any other reason. ( 34 ) AS far as the case of Sri Sultan Haider is concerned, the order of compulsory retirement indicates that during the last two years, there was a downfall in his work, which was rated as "below average". He was warned for certain gross negligence on his part. But no material has been provided in the counter-affidavit, that Sri Sultan Haider, ever earned any adverse remark, or censor after he was promoted on the post of Senior Assistant Manager (Material) and was confirmed on 1. 7. 1992. He was warned for certain gross negligence on his part. But no material has been provided in the counter-affidavit, that Sri Sultan Haider, ever earned any adverse remark, or censor after he was promoted on the post of Senior Assistant Manager (Material) and was confirmed on 1. 7. 1992. He was paid regular increments and the basic salary was enhanced. ( 35 ) ACCORDING to Sri Sultan Haider, one officer Sri Vikas Chandra was biased against him, who used to issue certain letters to him, but those differences were sorted out by the General manager, who upheld the contention of Sri Sultan Haider and thereafter, he was promoted and was given important assignments. The alleged warnings were issued in the year 1987 which were never accepted by his appointing authority and thereafter Mr. Sultan Haider was not only promoted but was given important assignments. The alleged warnings lost its importance after mr. Sultan Haider was promoted on the basis of the old and stale warnings and so he could not have been compulsorily retired. ( 36 ) AS far as the case of Sri Bboop Narain Tewary is concerned, the order of compulsory retirement indicated that during the last two years, there was a downfall "in his functioning" and was found to be "below average". He was also awarded punishment for certain lapses of serious nature on his part in September, 1992 and was also warned in May, 1995, for certain act of indiscipline. No material has been placed before this Court to show that what punishment was awarded, what lapses Sri Bhoop Narain Tewary has committed and what punishment was awarded to him in September, 1992 and what warning was issued for certain act of indiscipline and also showing any defect in the functioning of Sri Bhoop Narain Tewary. ( 37 ) IN all the counter-affidavit, a plea has been taken that the Uptron India Limited was a sick industrial unit and for chalking out a scheme for rehabilitation of UPTRON, the matter was pending before the B1fr. In order to bring down the working force, in accordance with the provisions of Government Orders, which are analogous to office order No. 36 dated 23. 4. In order to bring down the working force, in accordance with the provisions of Government Orders, which are analogous to office order No. 36 dated 23. 4. 1991 contained in Annexure-1 to the writ petition, a list of 78 employees, who have attained the age of 50 years or above were examined by a Screening Committee, constituted by the management of the respondent company, to recommend the possibility of their voluntary and/or compulsory retirement from the service, keeping in view of their ACR and performance for the last few years and thereafter, the Screening Committee submitted a report regarding 6 employees including the petitioners for compulsory retirement. ( 38 ) COUNTER-AFFIDAVIT filed in Shakeel Ahmad Malik shows that his case was considered along with other employees of his cadre, who were found meritorious and whose performance was much superior to that of the petitioner. Accordingly. they were granted promotion within the span of 2-3 years. However, since the petitioners performance was not up to the mark, therefore, instead of considering him for promotion within a span of 2-3 years of their last promotion as was done in the case of other meritorious employees, the petitioner was given promotion after five years and that too since he was the only Assistant Engineer (Inspector) in the Division. ( 39 ) MORE or less similar averments have been made in the counter-affidavit filed in the case of sultan Ahmad. ( 40 ) UNTIL and unless an employee has lost his utility in service or there exists anything adverse against him, he cannot be compulsorily retired even if he is less meritorious in comparison to other employees. When such an employee is promoted, the defect, if any, stands diluted. ( 41 ) IN Baikuntha Nath Das and Anr. v. Chief District Medical Officer. Baripada and Anr. (1992)2 SCC 299 , following principles were laid down in para 34 of the report : the following principles emerge from the above discussion : (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (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 requisite opinion on the given material ; in short, if it is found to be a perverse order. (iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter-of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/ character rolls. both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection)and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstances by itself cannot be a basis for interference. ( 42 ) THE fourth principle enunciated in Baikuntha Nath Das. (supra) is to consider the entire record of service before taking a decision in the matter-of course attaching more importance to record of and performance during the later years. In the present case before us, all the petitioners were promoted to the higher post on the basis of their earlier performance, they were given regular increments, their emoluments were increased, their work was appreciated by their officers, the letters of appreciation were issued to some of them, and even the cash awards were given to one or two petitioners. In the present case before us, all the petitioners were promoted to the higher post on the basis of their earlier performance, they were given regular increments, their emoluments were increased, their work was appreciated by their officers, the letters of appreciation were issued to some of them, and even the cash awards were given to one or two petitioners. It appears that the Screening Committee did not examine the entire record of service of the petitioners before recommending their compulsory retirement. The authority, which passed the order, also did not consider the entire record of service of the petitioners. The shortfall in the functioning as mentioned in the order of compulsory retirement is limited for 2 or 3 years. Neither any adverse entry was communicated to the petitioners nor the same was brought to the notice of this Court. The warning issued against Mr. Sultan Haider stood diluted after his promotion. ( 43 ) THE contention that the petitioners were less meritorious in comparison to others, cannot be a ground to debunk the officer and dump him as a dead-wood. ( 44 ) IT appears that as Uptron had been facing financial difficulties and for its rehabilitation, matter was pending before BIFR, hence the authorities adopted this device to cornpulsorily retire six officers including the petitioners. This cannot be a valid ground for compulsory retirement, because there are other methods by means of which they can meet the financial difficulties. A person can be compulsorily retired in public interest but the Trainers of the Rules lost sight of that matter that a person can only be cornpulsorily retired in public interest". Non-mentioning of public interest in the Rules, itself, vitiates the order of compulsory retirement. ( 45 ) THE use of words in the impugned order against the petitioners like down fall in the performance and was below average. in the habit of absenting himself in unauthorized manner, warned for certain gross negligence on the spot cast stigma on their conduct. ( 46 ) IN V. P. Ahuja v. State of Punjab, 2000 (2) Supreme 259 , the order of compulsory retirement of Mr. V. P. Ahuja, who was probationer, indicated that he was failure in performance of his duties administratively and technically. Therefore, the services of Mr. V. P. Ahuja were terminated with immediate effect. ( 46 ) IN V. P. Ahuja v. State of Punjab, 2000 (2) Supreme 259 , the order of compulsory retirement of Mr. V. P. Ahuja, who was probationer, indicated that he was failure in performance of his duties administratively and technically. Therefore, the services of Mr. V. P. Ahuja were terminated with immediate effect. Honble Supreme Court held that such an order which on the face of it is stigmatic, could not have been passed without holding the regular enquiry and giving opportunity of hearing to the appellant. ( 47 ) WE are of the view that the order of compulsory retirement is bad for non-application of mind and want of material particulars which are mandatory for invoking the Rules. ( 48 ) IN view of what has been indicated hereinabove, all the three writ petitions succeed and are allowed. A writ in the nature of certiorari is issued quashing the orders of compulsory retirement of the petitioners, dated 20. 6. 1996 contained in Annexure-14 to Writ Petition No. 921 (SB) of 1996. dated 20. 6. 1996 contained in Annexure-31 to Writ Petition No. 758 (SB) of 1996 and order dated 20. 6. 1996 contained in Annexure-23 to Writ Petition No. 627 (SB) of 1996. Petitioners Bhoop Narain Tewary and Sultan Haider shall be deemed in service till they attain the age of superannuation in accordance with Rules and shall be entitled for all consequential benefits. As Shakeel Ahmad Malik has expired, he would be deemed to be in service when he expired and, his heirs and legal representative will be entitled for all consequential benefits. .