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Board Of Trustees, Visakhapatnam ... vs T.S.N. Raju & Another on 6 September, 2006
Article 226 in The Constitution Of India 1949

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Kolkata High Court (Appellete Side)
Food Corporation Of India & Ors vs Utpal Chowdhury on 4 April, 2008
Author: Tapen Sen

Form No. J(2)

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

Present:

The Hon'ble Mr. Justice

Tapen Sen

And

The Hon'ble Mr. Justice

Sadhan Kumar Gupta

F.M.A. 1277 of 2007

Food Corporation of India & Ors.

Vs.

Utpal Chowdhury

Mr. Bhudev Bhattacharjee,

Ms. Mita Mukherjee ......... For the Appellants Mr. Partha Sarathi Sengupta,

Mr. Maniklal Mukhopadhyay,

Mr. Debujyoti Das ......... For the Respondent. Heard on: 04/3/2008 and 24/3/2008

Judgment on: 04/04/2008

Sadhan Kumar Gupta, J.

This appeal has been preferred against the judgment passed by the learned Single Judge of this court on 5/3/2007 in W.P. No. 12261 (W) of 2005. It is the case of the appellants that the writ petitioner filed the said writ before the ld. Single Judge challenging the order of rejection of the prayer for Voluntary Retirement Scheme (hereinafter referred to as VRS), as made by the respondent/writ petitioner, by the Food Corporation of India authority. It is stated in the said writ petition that the respondent is an employee of the Food Corporation of India (hereinafter referred to as the FCI). At the time of filing of the writ petition he was working as Assistant Manager under FCI. By the circular no. EP-01-04-16 dated 29/6/2004 the FCI authority prepared a VRS Scheme in respect of its officers and staff all over the country. By the said scheme, the corporation invited applications from its employees for voluntary retirement from the service and the corporation reserved its right either to allow or to reject such prayer. The scheme would remain operative for a period of three months from the date of the notification. The corporation by virtue of the said notification reserved its right for consideration of such prayer but in doing so it was made obligatory on the part of the corporation to record reasons in writing. Pursuant to the said circular the respondent/writ petitioner submitted a prayer for acceptance of VRS in his favour on 6th July, 2004, wherein the respondent expressed his desire for retirement under such scheme with effect from 5th October 2004 viz. after the expiry of three months' notice period. Although, there is a provision in the scheme that such applications of the employees, praying for voluntary retirement, are to be considered within 90 days from the date of receipt of the applications, but in the case of the respondent, the authority intimated the decision of rejection of such prayer after the said period of 90 days was over.

It is the specific case of the respondent/writ petitioner that his prayer for voluntary retirement was rejected by the Zonal Manager, East by his order dated 3/11/2004 which was served upon the writ petitioner on 19/11/2004. Said order of rejection did not disclose any reason for refusal of the prayer of the writ petitioner for voluntary retirement. As the said rejection order is clearly in violation of the scheme framed by the authority itself, so the said rejection order, according to the writ petitioner, should be considered to be void ab-initio. On receipt of such rejection order dated 3/11/2004 the respondent/writ petitioner submitted a representation on 30th November, 2004 and requested the authority to reconsider his prayer for voluntary retirement. But the said authority again refused such prayer and the result was communicated to the writ petitioner on 14/12/2004 which again did not disclose any reason whatsoever for its rejection. Although in the scheme itself it was incumbent on the authority to consider the prayer for VRS reasonably, fairly and judiciously, still it appears that the order of rejection of VRS and subsequent representation, were passed without assigning any reason. It is the specific case of the writ petitioner that in passing the order of rejection, the concerned Zonal Manager acted in a discriminatory and arbitrary manner and as such, the respondent was compelled to file the writ petition prayingfor directing the FCI authority to release the petitioner from FCI service treating his prayer of voluntary retirement, as accepted, by holding that the rejection order dated 3/11/2004 was illegal and should not be given effect to.

The appellant/FCI contested the said writ petition by filing affidavit-in- opposition, wherein the contentions of the writ petitioner were disputed. In the A/O the FCI did not dispute the circular dated 29/6/2004 inviting applications for voluntary retirement as per the scheme. According to the appellant the FCI authority had absolute authority either to accept or to reject any application for voluntary retirement and an employee cannot claim the privilege of voluntary retirement, as per the scheme, as a matter of right. In the said scheme it was mentioned that the application for voluntary retirement could be rejected in case there is any disciplinary proceeding pending against the concerned employee which may result in the imposition of penalty or removal or dismissal from service. However, the appellant admitted that the writ petitioner applied for VRS in prescribed format on 6th July, 2004. The said application along with other applications of other employees were duly processed as per the scheme and thereafter the prayer of the writ petitioner was rejected. In para 6(b) of the A/O the appellant claimed that the petitioner was charged sheeted under the Major Penalty clause and the same was pending when the petitioner applied for VRS on 6/7/2004. Due to pendency of the said vigilance case the prayer of the writ petitioner could not be accepted. According to the appellant the writ petitioner deliberately suppressed the fact of initiation of vigilance case against him although he had full knowledge about the charge sheet. Subsequent representation of the writ petitioner on 20/11/2004 was also rejected due to the pendency of the vigilance case against the writ petitioner. However, the appellant in para 6(d) of the A/O admitted that the writ petitioner was exonerated from the charges levelled against him. The appellant in the A/O clearly denied the allegations that it acted in a discriminatory way and the rejection order suffers from non application of mind.

In the Affidavit-in-reply the respondent/writ petitioner claimed that in the VRS application format there was no column provided in respect of disclosure of the fact of any departmental proceeding. As such, same was not disclosed in the application format and this non disclosure cannot be said to be suppression of material fact, as claimed by the FCI authority. It has been claimed that the authority was very much aware about the disciplinary proceeding and so question of suppression by the writ petitioner does not arise at all. It is further claimed by the writ petitioner that the inquiry officer by his order dated 28/4/2004 clearly submitted a report to the disciplinary authority to the effect that the charges against the writ petitioner could not be substantiated. This fact was very much within the knowledge of the Zonal Manager, who was the VRS accepting authority for FCI (Eastern Zone). When the inquiry officer submitted such a report, it was obligatory on the part of the disciplinary authority to pass appropriate order. But instead, said disciplinary authority viz. the Zonal Manger (east) wilfully kept his decision pending in order to reject the writ petitioner's prayer for VRS. This was done deliberately in order to favour one Manotosh Roy, Assistant Manager who also jointly faced the said vigilance proceeding along with the writ petitioner. In the enquiry report said Manatosh Roy was found guilty and the inquiry officer recommended for recovery of Rs.24,670/- from him. In spite of such clear finding against said Manotosh Roy, his prayer for VRS was allowed on 29/11/2004, which was earlier rejected on 3/11/2004 along with the prayer of the writ petitioner. It is further alleged that not only in the case of Manatosh Roy but in respect of huge number of other employees of FCI, the prayer for VRS was allowed in spite of the fact that vigilance cases were pending against them. This shows that the authority concerned acted arbitrarily and discriminatorily in refusing the prayer of VRS of the writ petitioner. Due to all these things the writ petitioner/respondent has claimed that the action of the authority in rejecting his prayer for VRS cannot sustain in the eye of law, as it was done arbitrarily and in a most discriminatory manner and as such the writ Court was urged to pass necessary direction so that the application, as filed by the writ petitioner should be allowed.

On the basis of the above pleadings, the ld. Advocates for both the sides made their submissions before us. It is the contention of the ld. Advocate for the appellants that the respondent/writ petitioner is not entitled to get any relief, as prayed in the writ petition. According to him, although, that there was a VRS introduced by the authority but the claim of the writ petitioner was rightly rejected by the authority as a vigilance case was pending against him. He further contended that when the writ petitioner was cleared of the said vigilance proceeding, at that time, the time for consideration of such VRS was also over and as such no benefit could be given to the writ petitioner. Mr. Bhattacharjee, learned advocate for the appellant further contended that the respondent/writ petitioner is not entitled to get any relief because of the fact that he suppressed the material fact before the authority while submitting VRS application. According to him, in the VRS application the respondent/writ petitioner intentionally did not mention about the pendency of the vigilance proceeding against him and as such, it must be held that the writ petitioner did not approach the authority with clean hands and consequently he does not deserve any equity in his favour, as claimed in the writ petition. Mr. Bhattacharyya, further argued that the writ petitioner was well aware about the reason for the rejection of his prayer for VRS by the authority. That apart, the reasons were clearly mentioned in the A/O of the appellants. Under such circumstances, Mr. Bhattacharyya claims that it cannot be said that no reason was given by the authority while disposing of the prayer for VRS, as filed by the respondent/writ petitioner.

On the other hand, Mr. Sengupta, ld. advocate for the respondent/writ petitioner argued that pendency of the vigilance proceeding against the writ petitioner could not be a bar for the authority in refusing such prayer. According to him, the inquiry officer after considering the materials on record submitted a report before the disciplinary authority whereby the writ petitioner was exonerated from the charges levelled against him. This enquiry report was within the knowledge of the appropriate authority and it was submitted before the expiry of three months from the date of the filing of the VRS application by the writ petitioner. According to Mr. Sengupta, the authority concerned, intentionally and deliberately did not take any final action on the basis of the said enquiry report and in the process allowed the prayer of VRS of the writ petitioner to be rejected on technical grounds.

Mr. Sengupta, further contended that the question of suppression of the pendency of the vigilance case in the VRS application form, as submitted by the writ petitioner, does not arise at all as there was no such column in the prescribed form, as introduced by the authority in this respect. It is the contention of Mr. Sengupta that in any event the authority was very much aware about the vigilance proceeding as was pending against the writ petitioner and as such, question of his suppressing this material fact does not arise at all. Mr. Sengupta further contended that the argument, as advanced by Mr. Bhattacharyya, that the reasons were given while rejecting the VRS application has got no leg to stand upon since there is nothing on record to show that the reasons were given while rejecting the prayer of VRS, as submitted by the writ petitioner. The reasons, as disclosed by the FCI in the A/O to the writ petition, cannot be considered to be a substitute for the requirement of furnishing reason in rejecting a VRS application, as mentioned in the scheme itself. Mr. Sengupta further submitted that the FCI Authority is guilty of discrimination, as it will appear that one Manatosh Roy also faced the vigilance enquiry along with the writ petitioner and although, subsequently, he was found guilty and punished, still on the basis of a review petition, as submitted by him, his prayer for granting VRS in his favour was allowed, while the prayer of the writ petitioner was not considered favourably by the authority although the fact remains that he was exonerated by the inquiry officer in the said vigilance proceeding. According to Mr. Sengupta, this glaring discrimination will be writ large from the documents itself, as produced before the writ court at the time of hearing and on this ground alone the order of refusal of VRS of the respondent/writ petitioner should be set aside and according to him the ld. single Judge was perfectly justified in passing such an order. He further contended that since the order, so passed by the ld. single Judge is in accordance with law, so this court should not interfere with the said order at all. We have considered the submissions of the ld. advocates for both the sides. It is the admitted position that FCI authority introduced the VRS for the benefit of its officers and staff. On the basis of such scheme, many employees including the writ petitioner submitted applications praying for grant of VRS. It appears from the circular no. EP-01-2004-16 dated 29/6/2004 that such a scheme was approved by the authority. It was mentioned in the said circular: "The above scheme will remain open for a period of three months from the date of issue of this circular and the request from the employees under this scheme would be received within this period. They will, however, give three months notice to the management for considering their request. However, the competent authority will take conscious decision within the notice period. The competent authority has to act in a reasonable and judicious manner while taking a view on the request of the employees so that there is no imputation of any discrimination." It further appears from the said scheme that the provisions have been made to the effect that:

"The corporation will have the right not to grant voluntary retirement to any of officers/officials for the reasons to be recorded in writing.

The scheme will be in operation for a period of three months from the date of is notification."

It is further stated in the said notification to the effect that "Further, voluntary retirement could be denied in the following circumstances:

(i) Where departmental proceedings have been initiated or are contemplated and the disciplinary authority is of the view that the case may result in the imposition of penalty of removal or dismissal; or

(ii) Where, prosecution is either contemplated or has actually been launched against the employee concerned."

So from the scheme, it appears that primary requirement for submission of the VRS application by an employee is that it must be filed within three months from the date of issuance of the circular. There is no dispute that the writ petitioner submitted such an application within the prescribed time limit. If we look into the circular, then it will appear that it was clearly mentioned therein that the competent authority was directed to act in a reasonable and judicious manner while taking a decision in respect of the voluntary retirement application of a particular employee. Ld. Advocate for the respondent/writ petitioner argued that the actions of the appellants will clearly demonstrate that they failed to act in a reasonable and judicious manner, as has been dictated in the circular itself. In order to substantiate his claim he submits that the vigilance enquiry was started against the writ petitioner. But the inquiry officer submitted his report on April 28, 2004. In his report, the inquiry officer clearly observed that the charges levelled against him could not be proved. On the basis of such report the disciplinary authority issued a notice on April 30, 2004 calling upon the petitioner to submit his comments on the findings recorded by the inquiry officer. From the said notice it does not appear that the disciplinary authority disagreed with the findings of the inquiry officer and proposed to impose any punishment upon the writ petitioner. Although, the writ petitioner submitted his reply on 1/6/2004, still the matter was allowed to be kept pending by the disciplinary authority and only on 25/1/2005 the disciplinary authority passed a final order exonerating the writ petitioner from all the charges. As such, it is very much clear that the authority concerned deliberately kept the matter pending in order to deprive the petitioner of the benefit of the VRS on the false pretext of pendency of a vigilance case, when for all practical purposes when the rejection order was passed, at that time there was in effect no disciplinary proceeding against the writ petitioner. So we are of the opinion that the appellant authority did not act fairly and judiciously in considering the VRS application submitted by the writ petitioner, as envisaged in the scheme itself. In this respect we fully agree with the finding, as arrived at by the ld. single Judge

Mr. Bhattacharyya, ld. advocate for the appellant vehemently argued that as per the said scheme it must be said that an employee cannot claim VRS as a matter of right and it is the discretion of the authority either to allow or to reject the same and in case of rejection it cannot be questioned in a court of law. We are unable to accept such contention of Mr. Bhattcharyya. We have already pointed out that in the scheme itself it was mentioned that the authority concerned was to consider the prayer of VRS in a reasonable and judicious manner so that there should not be any scope for making any allegation that the authority, in considering such a prayer, acted in a discriminatory way. So it is mandatory for the authority to act in the manner, as has been prescribed in the scheme. From our above discussion, we have already pointed out that the manner in which the application for VRS of the writ petitioner was considered, cannot be said to be fair and proper. Although, the writ petitioner was exonerated in the enquiry report, still the disciplinary authority kept the matter pending for a long period without any reason whatsoever although, he did not disagree with the finding of the inquiry officer nor there is anything to show that the said authority contemplated to impose any penalty upon the writ petitioner. Under such circumstances, we have got no hesitation to hold that the action taken by the appellant in this respect appears to be arbitrary and unfair. It further appears from the scheme that it was incumbent upon the authority to give reasons while rejecting the prayer for VRS, as submitted by an employee. From the rejection order, it is palpably clear that no reason was given by the authority. We have already pointed out that in the scheme it has been clearly mentioned in item no (I) to the effect:

"The corporation will have the right not to grant voluntary retirement to any of officers/officials for the reasons to be recorded in writing".

(emphasis supplied).

The scheme itself provides for giving reasons in writing while rejecting such a prayer. It is not permissible for the authority in not providing any such reasoning and thereby to reject such a prayer in an arbitrary way. Mr. Bhattacharyya, learned advocate for the appellant argued that in the A/O it was clearly mentioned about the reasons for such refusal. But it is now the settled position of law that when the authority is bound to give reasons while rejecting a prayer, then it is not sufficient for them to claim that although in the communication to the person concerned no reason was given, but the reasons were sufficiently given in the A/O. In fact compliance of such a requirement in the A/O in a writ proceeding cannot be said to be adequate compliance of the requirement, as provided in a scheme of the Government. Under such circumstances, we hold that the authority while rejecting the VRS application of the writ petitioner failed to give proper reasoning and as such, said refusal order must be held to be bad in the eye of law.

Mr. Sengupta, ld. advocate for the respondent/writ petitioner argued that the authority is guilty of gross discrimination while rejecting the VRS prayer of the writ petitioner. In this respect he has cited example of one Manotosh Roy. This fact was also taken into consideration by the ld. single Judge. It appears that this Manotosh Roy and the writ petitioner faced same vigilance proceeding. We have already mentioned that the finding of the inquiry officer was in favour of the writ petitioner. But it appears that Manotosh Roy was found guilty in the report of the inquiry officer. In spite of that, Manotosh Roy's prayer for VRS was cleared by the authority while they preferred to reject the prayer of the respondent/writ petitioner, although, he was exonerated from all the charges as per report submitted by the inquiry officer. This report of the inquiry officer was submitted before the disciplinary authority on 28/4/2004. On the basis of the said report the disciplinary authority issued statutory notice in the name of the writ petitioner on 30/4/2004. So it is apparent that since 28/4/2004 the authority was well aware that the writ petitioner was exonerated from all the charges which were framed against him in the vigilance proceeding. There is nothing on record to show that the disciplinary authority disagreed with the finding of the inquiry officer and proposed to impose any penalty upon the respondent/writ petitioner. Still the authority allowed the said proceeding to be kept pending till January, 2005 when a formal order of exoneration was passed in favour of the writ petitioner. In the meantime, taking the plea of the pendency of the vigilance proceeding, the prayer of VRS, as submitted by the writ petitioner, was rejected on 3rd November, 2004. It has already been pointed out that besides the pendency of this vigilance proceeding there was practically nothing against the writ petitioner so that the authority could refuse the prayer of VRS, as submitted by him. There is reason to believe that the authority concerned kept the vigilance proceeding pending unnecessarily for a long time with the intention to deprive the petitioner of the benefit of the VRS, for reasons best known to it. This view finds support if we look into the case of another employee namely Manotosh Roy. It has already been pointed out that the prayer of Manotosh was also rejected along with the prayer of the writ petitioner on 3/11/2004. But so far as the case of the petitioner is concerned, it is completely different with that of the case of Manotosh who was found guilty by the inquiry officer and was punished. In spite of that the authority concerned preferred to allow the review petition of Manotosh and at the same time rejected such prayer of the writ petitioner. There cannot be any apparent reason for the authority in taking such decision in such a discriminatory way. A person who has been exonerated was deprived of the benefit and the person who was found guilty was given the benefit of VRS. Nothing could be more shocking than that of this attitude, as shown by the authority concerned. It may be pointed out that the appellant is a government organisation and its officers are bound to follow the procedures impartially in respect of all its employees. When a benefit has been proposed to be given to the employees by the government, then it was no business of the concerned authority to deprive one of them by passing order in whimsical manner thereby practically ignored the benevolent intention of the government in issuing such beneficial circular. There is no explanation given from the side of the appellant as to how Manotosh's case could be dealt with in such a fashion while showing discriminatory attitude in considering the case of the writ petitioner. From the materials, as discussed above, we have got no hesitation to hold that the action taken by the authority in rejecting the VRS prayer of the writ petitioner is absolutely illegal, improper and unjust and in this respect we fully agree with the finding of the ld. single Judge. Thus, from the discussion above, we concur with the views of the learned Single Judge that the benefit of VRS was illegally denied to the writ petitioner and consequently the order so passed by the learned Single Judge deserves to be confirmed. But at the same time, Mr. Bhattacharyya, learned advocate for the appellants submits that High Court in exercise of the power under Article 226 of the Constitution of India cannot direct the authority for accepting an application for VRS, as submitted by an employee. It can only pass direction for proper consideration of the same. In support of this contention, he has cited decision reported in (2006) 7 SCC 664 (Board of Trustees, Vishakapattanam Port Trust & Ors. vs. T.S.N. Raju & Anr.). In the said decision, the Hon'ble Apex Court held:

"In any event, the Single Judge ought not to have issued the direction to the department to accept the voluntary retirement of the respondents as on the date of their application and pass appropriate order. The learned Judge at any rate can only direct the Port Trust to consider their applications for voluntary retirement and pass appropriate orders. The order passed by the learned Single Judge is, therefore, beyond the jurisdiction of the Court in issuing such direction".

In view of such observation of the Apex Court, we are of opinion that although, it is clear that the authority concerned acted in a discriminatory way and also illegally in rejecting the prayer of VRS of the respondent/writ petitioner, the authority cannot be commanded by a Court exercising powers of judicial review to accept the proposal of voluntary retirement. At the same time, since we are of the opinion that gross injustice has been done on the writ petitioner due to the discriminatory act of the authority concerned in rejecting his prayer for VRS, we think that the matter should be sent back to the said authority to reconsider its decision keeping in view the discussion which has been made in the body of this judgment.

In the result, the appeal succeeds in part on contest. The finding of the learned Single Judge of this Court in W.P. no. 12261 (W) of 2005 is confirmed to the extent that the prayer of the writ petitioner for allowing his VRS application was not considered by the authority in proper way and the same was passed in a discriminatory manner. But so far as the direction given by the ld. Single Judge on the authority to accept and allow the VRS application of the writ petitioner with effect from November 3, 2004 is concerned, the same is set aside following the judgment of the Supreme Court referred to above. The appellants are directed to

reconsider the matter, in the light of the observations made in this judgment keeping in mind that the writ petitioner was exonerated from all the charges by the inquiry officer and that there was no contemplation by the disciplinary authority to impose any penalty upon him. In doing so, the authority is directed to keep in mind that another employee viz. Manatosh Roy was considered favourably by it, although he was punished in the vigilance proceeding. The appellant is directed to take the decision in this respect within two months from the date of receipt of the copy of this order by passing a reasoned order and to communicate the same to the writ petitioner.

Let a certified photocopy of this judgment be handed over to the parties on urgent basis, if applied for.

(Sadhan Kumar Gupta, J.)

I agree,

( Tapen Sen, J. )

LATER:

After delivery of the judgment in Court, Mr. Bhudev Bhattacharjee, appearing for the Appellants, prayed for stay of this judgment but having considered the facts and circumstances, we refused to grant stay. (Sadhan Kumar Gupta, J.)

I agree,

( Tapen Sen, J. )