Gujarat High Court
Pankaj Premshankar Dave vs Sardar Krushinagar Dantiwada ... on 8 October, 2020
Author: A. C. Rao
Bench: A.C. Rao
C/SCA/6579/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6579 of 2017
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 6579 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.C. RAO
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of India
or any order made thereunder ?
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PANKAJ PREMSHANKAR DAVE
Versus
SARDAR KRUSHINAGAR DANTIWADA AGRICULTURAL
UNIVERSITY & 1 other(s)
======================================================
Appearance:
MR GUNVANT B SHAH(3859) for the Petitioner(s) No. 1
MR SAMIR B GOHIL(5718) for the Petitioner(s) No. 1
MR SAHIL TRIVEDI AGP for the Respondent(s) No. 2
MR DG CHAUHAN(218) for the Respondent(s) No. 1
RONAK D CHAUHAN(7709) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE A.C. RAO
Date : 08/10/2020
ORAL JUDGMENT
By way of present petition under Article 226 of the constitution of India, the petitioner has Page 1 of 11 Downloaded on : Wed Feb 24 22:03:48 IST 2021 C/SCA/6579/2017 JUDGMENT challenged the impugned order dated 30.08.2016 of compulsory retirement passed by the respondent No.1 and he has further prayed that the respondent may be directed to reinstate the petitioner w.e.f. filing of this petition with continuity of service and pay him regular salary and all consequential benefits.
2. The short facts leading to the present petition are as under : 2.1 The petitioner was engaged as a daily wager X ray technician in the year 1987. Thereafter, vide order dated 2.3.1989, the petitioner was appointed as Xray technician on probation. By order dated 13.4.2004, his services were regularized by the respondent No.1. The petitioner has completed 28 years of service and thereafter, the respondent No.1 had passed an order dated 30.08.2016 retiring the petitioner w.e.f. from 31.08.2016 on the ground that the Xray machine is not functioning and the petitioner was declared as surplus. The said order was challenged on the ground that compulsory retirement is a major penalty and hence the action cannot be taken without following laid down procedures and rules.
3. The learned advocate for the petitioner has drawn the attention of this Court to the State Agricultural Universities Services of Gujarat (Discipline and Appeal) Rules, 2011 and according to Rule No.16, compulsory retirement is a major Page 2 of 11 Downloaded on : Wed Feb 24 22:03:48 IST 2021 C/SCA/6579/2017 JUDGMENT punishment. He has also taken this Court to Rule No.17, which lays that the Board of Management may impose on a University employee any of the penalties specified in Rule No.16. Rule No.20 is a procedure for imposing major penalties.
3.1 Relied on the said Rules, learned advocate for the petitioner has contended that this mandatory provisions are not followed by the respondent and the the petitioner cannot be retired compulsorily from the services without holding a departmental inquiry.
3.2 The another contention raised by the learned advocate for the petitioner is that there was audit report in the year 200405 and as per the audit report, the Xray machine was partly in use as per the opinion of the Xray technician. He has also relied upon the letter written by the Research Director addressed to the Medical Officer of University, when grant of Rs.25 Lacs were sanctioned for digital Xray machine.
3.3 At the time of arguments, the learned advocate for the petitioner has relied upon the judgment of the Apex Court rendered in case of Rajesh Gupta vs. State of Jammu and Kashmir reported in AIR 2013 SC 2130 and contended that even as per this judgment, the order of compulsory retirement shall not be passed as a shortcut to avoid departmental inquiry and therefore, the order of the respondent is vitiated for noncompliance of Article 311(2) and the Page 3 of 11 Downloaded on : Wed Feb 24 22:03:48 IST 2021 C/SCA/6579/2017 JUDGMENT rules of natural justice and it is without jurisdiction and required to be quashed and set aside.
4. Per contra, learned advocate for the respondent No.1 has contended that this is not a punishment, but it is termination of services simplicitor without any stigma. He has drawn the attention of this Court towards the AnnexureI, which is an order passed by the University, by which the petitioner was retired compulsorily. He has vehemently contended that in the order itself it is stated that after 200405, not a single Xray was taken through the said machine and the machine was disposed off and therefore, the petitioner was declared as surplus. It is also contended that the present petitioner has not cleared HSC examination and therefore, he is not having any minimum required qualification for the post of Class
3. So there is no option for the department except to retire him compulsorily. He has also drawn the attention of this Court to the order dated 3.8.2010 and the letter written by the petitioner dated 4.9.2010 and as per the said documents, he was transferred to the Veterinary University but thereafter, within a short period of one month, he had written a letter wherein, he had requested that he had under gone angioplasty and he was facing physical and mental difficulty in performing his duties. So considering his application, by order dated 11.10.2010 his transfer was cancelled. Thereafter, he was transferred to Veterinary Clinic Page 4 of 11 Downloaded on : Wed Feb 24 22:03:48 IST 2021 C/SCA/6579/2017 JUDGMENT at Deesa. He again requested that his transfer may be cancelled. So considering his request, again his transfer was cancelled. Relying on all these documents, it is contended that petitioner is not ready to work elsewhere. It is vehemently contended that the audit report relied upon by the petitioner is based on the opinion of the petitioner himself. He has contended that there was no vacancy and compulsory retirement is simplicitor without any stigma and therefore, no interference is required. He has also submitted that the question raised by the learned advocate for the petitioner is a question of fact and that cannot be decided in the writ jurisdiction. It is also contended that this writ petition is barred by alternative remedy.
4.1 The learned advocate for petitioner has replied to the question of alternative remedy in a cavalier manner and contended that notice for final hearing was issued by this Court and after a lapse of 4 years of time, the petitioner cannot be relegated back to the Tribunal.
4.2 It is pertinent to note that the respondent University, at the intervene of the Court, was ready to absorb the petitioner on the post of peon. The said offer was rejected by the petitioner because it is below the category then he was serving.
5. Learned AGP has adopted the submissions made by the learned advocate for the respondent No.1.
Page 5 of 11 Downloaded on : Wed Feb 24 22:03:48 IST 2021C/SCA/6579/2017 JUDGMENT 6. After considering the rival submissions and
considering the fact that it is not in dispute that the order of compulsory retirement is different from the order of dismissal or removal and does not inflict any punishment on the Government servant, it only deprives the Government servant an opportunity to remain in Government service till the age of superannuation. Therefore, the order of compulsory retirement differs from the order of dismissal or removal both in its natural and consequence. Considering the material on record, it appears that the order passed by the respondent does not reflect anything that the order was passed in order to harass the petitioner. On the contrary, it was observed that not a single Xray was taken after the year 200405. Under the circumstances, I do not find any fault with the order. The petitioner has not contended that the Xrays were taken and there was sufficient work of the machine. The Supreme Court in the case of Rajesh Gupta (supra) has observed as under :
"21.In the case of State of Gujarat vs. Umedbhai M.Patel (supra), the same principles were reiterated in the following words :
11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus:
(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory Page 6 of 11 Downloaded on : Wed Feb 24 22:03:48 IST 2021 C/SCA/6579/2017 JUDGMENT retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure."
6.1 Applying the said ratio to the facts of the present case, I find that the order of the compulsory retirement is based on the subjective satisfaction of the competent authority and on objective consideration. There is nothing to show that the order was passed arbitrarily and without application of mind or that such formation of opinion to retire compulsorily was based on no evidence or that the order of compulsory retirement was totally perverse.
6.2 The question of the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. It cannot be denied that the Education Tribunal has jurisdiction to decide the issue raised by the petitioner. The petitioner could have described as to how an aggrieved person could not resort to the alternative statute remedy of appeal and why they could not obtain suitable orders from the Tribunal under the Act. The writ of mandamus is an extraordinary remedy Page 7 of 11 Downloaded on : Wed Feb 24 22:03:48 IST 2021 C/SCA/6579/2017 JUDGMENT and is intended to apply deficiency in law and is thus, discretionary in nature. The issuance of a writ of mandamus persupposes a clear writ of application and justify failure of a duty imposed on the authority, otherwise obliged in a law to imperatively discharge the same. Even though the High Court can entertain a Writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law (see Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar, AIR 1969 SC 556 and also Nivedita Sharma vs. Cellular Operators Association of India & Ors., (2011) 14 SCC 337). In Thansingh Nathmal & Ors. vs. Superintendent of Taxes, Dhubri & Ors., AIR 1964 SC 1419 the Constitution Bench of Supreme Court made it amply clear that although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self imposed restraint and not entertain the Writ petition, if an alternative effective remedy is available to the aggrieved person. In paragraph 7, the Court observed thus: "7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the Jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the Page 8 of 11 Downloaded on : Wed Feb 24 22:03:48 IST 2021 C/SCA/6579/2017 JUDGMENT concept of sale, and invoked the extraordinary Jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The Jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the Jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the Jurisdiction demands that it will ordinarily be exercised subject to certain selfimposed limitations. Resort that Jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a Writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the Writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming Jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another Jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. (emphasis supplied)"
6.3 The Supreme Court in Titaghur Paper Mills Co. Ltd. & Anr. Vs. State of Orissa & Ors., 1983 2 SCC 433 wherein it is observed that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. In paragraph 11, the Supreme Court observed thus: Page 9 of 11 Downloaded on : Wed Feb 24 22:03:48 IST 2021 C/SCA/6579/2017 JUDGMENT "11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under subsection (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CBNS 336, 356] in the following passage:
There are three classes of cases in which a liability may be established founded upon statute. . . . But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it . The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.
The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. (1919 AC 368) and has been reaffirmed by the Privy Council in AttorneyGeneral of Trinidad and Tobago v. Gordon Grant & Co. Ltd. (1935 AC 532) and Secretary of State v. Mask & Co. (AIR 1940 PC 105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the Writ petitions in limine. (emphasis supplied) In the subsequent decision in Mafatlal Industries Ltd. & Ors. vs. Union of India & Ors., 1997 5 SCC 536 this Court went on to observe that an Act cannot bar and curtail remedy under Article 226 or 32 of the Constitution. The Court, however, added a word of caution and expounded that the constitutional Court would certainly take note of the legislative intent manifested in the provisions of Page 10 of 11 Downloaded on : Wed Feb 24 22:03:48 IST 2021 C/SCA/6579/2017 JUDGMENT the Act and would exercise its Jurisdiction consistent with the provisions of the enactment. To put it differently, the fact that the High Court has wide Jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statute."
6.4 The FullBench of Supreme Court decision in ITC Ltd. & Anr. Vs. Union of India, (1998) 8 SCC 610, wherein, the High Court had dismissed the Writ petition on the ground that the petitioner therein had an adequate alternative remedy by way of an appeal under Section 35 of the Central Excise Act. Concededly, the Supreme Court was pleased to uphold that opinion of the High Court.
7. On foregoing discussion, I do not find any reason to interfere with the order passed by the respondent University.
The present petition deserves to be dismissed and is hereby dismissed. Rule is discharged.
In view of the disposal of the main petition, the civil application does not survive and stands disposed of accordingly.
(A. C. RAO, J) /jyoti jani/dolly//beena//kdc Page 11 of 11 Downloaded on : Wed Feb 24 22:03:48 IST 2021