K CHELLIAH Vs. INDUSTRIAL FINANCE CORPORATION OF INDIA PARLIAMENT STREET BANK OF BARODA BUILDING NEW DELHI

JUDGEMENT

(1.) THIS is a petition for the issue of a writ of certiorari to quash the order of the respondents dated 17th October, 1977, compulsorily retiring the petitioner from service under Regulation 33 of the Staff Regulation of the Industrial Finance Corporation of India.

(2.) THE petitioner was appointed as a clerk of the Industrial Finance Corporation of India, hereinafter called the Corporation by an appointment order dated 18th May, 1950, issued by the Manager of the Corporation at Madras. He joined duty at the Madras Office of the Corporation on 1st June, 1950, He was promoted as Inspector in 1961. When he was due for promotion as Manager, there were certain disciplinary proceedings against him which ultimately ended in an order of dismissal in May, 1965. This order of dismissal was confirmed in appeal on 26th November, 1969. THE petitioner questioned the validity of this order and prayed for a writ of certiorari in this Court in Writ Petition No. 1162 of 1970. This writ petition was allowed by this Court on 29th October, 1971 and the petitioner was ordered to be reinstated in service. Accordingly he, was reinstated in service but transferred to Calcutta on 17th February, 1972. THEreafter he served in a number of places in India and ultimately he was transferred to Cochin. While he was serving as Assistant Manager at Cochin, he was compulsorily retired under Regulation 33(1) of the Staff Regulations of the Corporation hereinafter called the Regulations with effect from 16th January, 1978. This order was served on the petitioner at his Madras address in West Mambalam, Madras. THE order compulsorily retiring him from service reads as follows: "It has been decided to retire you from service of the Corporation in terms of Regulation 33 (1) of the Staff Regulations of the Corporation. Accordingly, you are hereby given three months" notice from the date hereof, on the expiry of which, you will retire from the Corporation's service on Monday the 16th January, 1978 (Afternoon). You are already on ordinary leave for 35 days from the 10th October 1977, to the 11th November 1977, If there is any further ordinary leave to your credit, you may avail yourself of the same from Tuesday the 17th January, 1978, in which case, you will be deemed to have retired from service of the Corporation on the expiry of such leave, in terms of Explanation II to Staff Regulation 33 referred to above. Please acknowledge receipt."

(3.) THE question for consideration, therefore is whether the compulsory retirement in this case is in accordance with Regulation 33. Regulation 33 of the Corporation as it originally stood prior to 20th December, 1976 when it was substituted by a New Regulation 33 as per Administrative Circular No, 42 of 1976 of that date read as follows: "33. Superannuation and Retirement. " (1) An employee shall retire on completion of fifty-eight (58) years of age provided that the Corporation may at their discretion retire an employee on completion of 30 years of service or 55 years of age, whichever shall first happen. For Class IV employees the age of compulsory retirement shall be 60 years. Such option shall also be available to an employee to retire from the service of the Corporation after he completes 30 years of service, or attains the age of 55 years. (2) THE power conferred by Sub-Regulation (1) to retire an employee on the completion of 30 years of service or 55 years of age shall be exercisable by the Chairman in the case of officers in Class I, prior approval of the Board shall be necessary. Explanation I. " For the purpose of this Regulation, service shall not include any period of service rendered by an employee before attaining the age of 21 years. Explanation II. " Notwithstanding anything contained in this Regulation, where an employee has ordinary leave earned but not availed of as on the date of retirement as prescribed in the above Regulation, he may be permitted to avail of the leave subject to a maximum of 6 months in respect of leave earned under these Regulations and in that case the employee will be deemed to retire from service at the expiry of the leave. (3) Where an employee is re-employed in the Corporation's service or is permitted to be employed outside the Corporation while he is on leave preparatory to retire-meat he may be required or permitted to avail of such leave or any part thereof immediately after he ceases to be so employed but the period during which he is so employed shall not " (i) if the re-employment is in the Corporation's service, count for any purpose as service or duty in relation to his previous employment in the Corporation except to the extent provided for in the terms of re-employment. (ii) if the employment is outside the Corporation, count for any purpose as service or duty in the Corporation except for purposes of Regulation 130 and Chapter IV of these Regulations." THE Regulation as substituted by the said Administrative Circular in force from 20th December, 1976 read as follows: "33. Superannuation and Retirement. " (1) An employee, other than an employee, in Class IV, shall retire on completion of fifty-eight (58) years of age, whereas an employee in Class IV, shall retire when he attains the age of 60 years. THE Corporation shall, however have absolute right to retire an employee, if it considers necessary to do so in the interests of the Corporation, by giving him notice of not less than three months in writing, on completion of 30 years of service or 50 years of age, whichever shall first happen, or at any time thereafter. Such option to retire from the service shall also be available to an employee, in any class, after he completes 30 years of service or attains the age of 55 years, by giving three months notice in writing to the competent authority. (2) THE power conferred by Sub-Regulation (1) to retire an employee on completion of 30 years of service or on attaining the age of 50 years, or at any time thereafter, shall be exercisable by the Chairman in the case of officers in Class I, prior approval of the Board shall be necessary. Explanation-I. " For the purpose of this Regulation, service shall not include any period of service rendered by an employee before attaining the age of 21 years. Explanation-II. " Notwithstanding anything contained in this Regulation, where an employee has ordinary leave earned but not availed of as on the date of retirement as prescribed in the above Regulation, he may be permitted to avail of the leave subject to a maximum of 6 months in respect of leave earned under these Regulations and in that case the employee will be deemed to retire from service at the expiry of the leave. Explanation-III " In order to implement the power to retire an employee as mentioned in Sub-Regulation (1) above, the Corporation shall review the cases of such employees six months before they attain the age of 50 years and 55 years or before they complete 30 years of service for which purpose special review committee shall be constituted by the Chairman for making recommendations in the matter. (3) Where an employee is re-employed in the Corporation's service or is permitted to be employed outside the Corporation while he is on leave preparatory to retirement he may be required or permitted to avail of such leave or any part thereof immediately after he ceases to be so employed but the period during which he is so employed shall not.......... (i) if the re-employment is in the Corporation's service, count for any purpose as service or duty in relation to his previous employment in the Corporation except to the extent provided for in the terms of re-employment. (ii) If the employment is outside the Corporation, count for any purpose as service or duty in the Corporation except for purposes of Regulation 130 and Chapter IV of those Regulations" While Sub-Regulation (1) of Regulation 33 conferred a power on the Corporation to retire an employee before the normal superannuation, Explanation III provided the procedure to be followed in compulsorily retiring a person. But the procedure prescribed refers to retiring a person at the age of 55 while no substantive power is given to retire an employee at the age of 55 under Sub-Regulation (1). I, therefore, called for the files relating to the Administrative Circular No. 42 of 1976 in order to find out the real intention of Regulation 33.