Gujarat High Court
A V Bengali vs State Of Gujarat & 2 on 9 March, 2016
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/4803/2001 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4803 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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A V BENGALI....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR SHIRISH JOSHI, ADVOCATE for the Petitioner(s) No. 1
MR.UDIT MEHTA, AGP for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 09/03/2016
ORAL JUDGMENT
1. By way of this petition, petitioner has challenged the order dated 29.08.1998 passed by Page 1 of 35 HC-NIC Page 1 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT respondent No.2 as well as order dated 02.01.2001 passed by the respondent No.1, by which, the petitioner was prematurely retired from service. Petitioner has also prayed that respondents be directed to reinstate the petitioner in service and to give all consequential benefits.
2. Heard learned advocate Mr.Shirish Joshi for the petitioner and learned AGP Mr.Udit Mehta for the respondents.
3. Learned advocate Mr.Joshi appearing for the petitioner submitted that petitioner was borne on 10.11.1943 and therefore, he has completed 58 years of age on 10.11.2001. Petitioner was appointed as Junior Clerk in the Police Department on 03.08.1966. Thereafter he was promoted as Senior Clerk in the year 1979 and in the year 1990, he was further promoted to the post of Head Clerk. As per the submission of learned advocate Mr.Joshi, the service record of the petitioner during the period of 32 years is unblemished and there was no complaint against the petitioner. However, one FIR came to be registered against the petitioner for the offenses punishable Page 2 of 35 HC-NIC Page 2 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT under Prevention of Corruption Act. In the said FIR, one Mr.Prajapati was also shown as a coaccused. The petitioner was not present in the office at the time of raid and there was no case of demand of any bribe or acceptance or recovery of the amount of bribe from the petitioner. The said case was pending before the concerned Sessions Court.
4. At this stage, it is submitted that the respondent passed the impugned order on 29.08.1998 while exercising powers under Rule 161 of Bombay Civil Service Rules, 1959 (hereinafter referred to as 'BCSR' for the sake of convenience). By way of the said order, petitioner was prematurely/compulsorily retired from service at the age of 55 years and 3 months notice pay was given to him. Petitioner therefore made representation on 07.12.1998 to the respondent No.2 and pointed out the fact that during his entire service period of 32 years, except the aforesaid FIR which is falsely filed against him, no other inquiry was held against him. Petitioner has worked for 32 years with honesty and sincerity with the respondent department. It is also pointed out that said order was passed without following principles of natural Page 3 of 35 HC-NIC Page 3 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT justice and therefore, the said order be recalled/reviewed. It is thereafter submitted that the petitioner preferred Appeal No.519 of 1998 before the Gujarat Civil Services Tribunal against the order passed by the respondent authority. During the pendency of the said appeal, the respondent authority filed the parawise remarks, in which, it has been specifically stated that FIR being C.R.No.11 of 1996 is registered with ACB Police Station, Vadodara, against the petitioner under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act and when the trial is pending against the petitioner before the Sessions Court, Vadodara, the respondent No.2 has taken the decision that there is sufficient material available on record against the petitioner to reveal that his integrity is doubtful. Accordingly, it was decided that he is not fit to be continued beyond 55 years.
5. Learned advocate Mr.Joshi thereafter contended that the aforesaid appeal was disposed of by the Tribunal on the ground that petitioner is having alternative remedy available with him and therefore, the petitioner was directed to file appeal before the Page 4 of 35 HC-NIC Page 4 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT Superior Authority i.e. Home Department. Petitioner accordingly filed an appeal before the Additional Secretary, Home Department, State of Gujarat and pointed out all the correct facts, in which it was also pointed out that the Sessions Court, Vadodara, has acquitted the petitioner by an order dated 12.10.1999 and therefore, when the order of acquittal is passed, the order of compulsory retirement be recalled. The State Government informed the respondent No.2 that appeal filed by the petitioner is dismissed and therefore, the respondent No.2 informed the said fact to the petitioner by communication dated 18.01.2001.
6. Learned advocate Mr.Joshi thereafter contended that against the order passed by the learned Sessions Court on 12.10.1999, in Special Case No.12 of 1997, the State preferred Appeal being Criminal Appeal No.1318 of 1999 before this Court and this Court by an order dated 03.10.2000 dismissed the said appeal at admission stage. Thus, the order of acquittal passed by the Sessions Court has been confirmed by this Court. Thus, when the petitioner has been acquitted by the competent Criminal Court, now there is no Page 5 of 35 HC-NIC Page 5 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT question of believing that the integrity of the petitioner is doubtful. He therefore submitted that the respondent authority ought to have reconsider the case of the petitioner in view of the aforesaid development.
7. Learned advocate Mr.Joshi thereafter submitted that when the petitioner has filed the petition, the respondent authority has filed an affidavit on 30.07.2002, wherein a new story has been putforward by the respondent. In the affidavit, the respondent has stated that past record of the petitioner is not clean and blotless and during the year 199697, there were certain adverse remarks in the annual confidential report of the petitioner. Thus, now the respondent has placed reliance upon adverse remarks for a period of 199697. He further contended that in another affidavit which is filed by the concerned respondent, it has been stated that the respondent has considered adverse remarks for a period of last 8 to 10 years and thereafter in the last affidavit, it has been clarified that there was a mistake on the part of the respondent in submitting that the remarks in the confidential report of the petitioner for last 8 to 10 Page 6 of 35 HC-NIC Page 6 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT years were not satisfactory. It is clarified in the last affidavit that respondent has considered annual confidential report of last 8 to 10 years, out of which, there were adverse remarks in the year 1996 1997. Thus, respondent authority is changing its stand from time to time. It is pointed out that this Court passed an order on 18.02.2013 in the present petition when it was heard and observed as under:
"2. Challenge is made to the order dated 29.08.1998 ordering premature retirement of the petitioner who was working under the administrative control of the Director General of Police, Gujarat State. It is pointed out that, at the relevant time, the petitioner was under suspension because he was facing a trial for ACB case.
3. The tenor of the material on record, to contest the petition on merits, suggests that the authorities were influenced substantially and probably solely because of the ACB case against the petitioner. At one stage, even after acquittal of the petitioner from the said case, the ground not to reconsider the case of the petitioner was projected as pendency of the acquittal appeal preferred by the State. It is on record that even the said acquittal is confirmed by this Court.
4. After having committed to one defence before the Tribunal as well as while responding to the representation of the petitioner to the effect that, it is the ACB case which was an adversity against the petitioner, after about a decade of filing the petition, new defense is taken by the authorities by stating that the impugned Page 7 of 35 HC-NIC Page 7 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT order can be sustained on other ground, as well.
5. Under these circumstances, it would be necessary to ascertain, as to as a matter of fact, what had weighed with the authorities at the relevant time.
6. Learned AGP Mr. Rindani may report to the Court in this regard, after having a look at the original record. List the matter on 11.03.2013, within first 10 matters on the final hearing board of that day."
It is submitted that thereafter learned AGP has not at all considered the original file and reported to this Court that what had weighed with the authority at the relevant time. He submitted that even today when the matter is heard, the officer is not present with the original file and therefore, this Court may take serious note of the aforesaid aspect.
8. Learned advocate Mr.Joshi thereafter submitted that one Mr.S.H.Prajapati who was coaccused in the FIR registered against the petitioner under the Prevention of Corruption Act, in fact, said Mr.Prajapati was also tried alongwith the petitioner before the learned Sessions Court. Learned Sessions Court acquitted the said accused. Mr.Prajapati was placed under suspension during the pendency of trial. However, after the order of acquittal was passed by Page 8 of 35 HC-NIC Page 8 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT the Sessions Court, he was reinstated in the service and his order of suspension was revoked in August 1999, whereas, the petitioner has been compulsorily retired by an order dated 30.08.1998. Mr.Prajapati was thereafter promoted as Office Superintendent in October 2002 and in January 2004, he was allowed to retire on attaining the age of superannuation. It is contended that Mr.Prajapati has accepted actually Rs.300/ from the complainant. In spite of that, he was reinstated and given promotion. Thus, if the respondent authority has formed the opinion on the basis of the registration of the FIR against the petitioner that his integrity is doubtful, then the respondent authority ought to have formed the similar opinion so far as Mr.Prajapati is concerned. No departmental inquiry was ever initiated against said Mr.Prajapati by the respondent. Thus, the respondent has given discriminatory treatment to the petitioner and therefore, the impugned order be quashed and set aside.
9. Learned advocate Mr.Joshi has placed reliance upon the following decisions rendered by the Hon'ble Supreme Court as well as this Court.
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• In case of Rajesh Gupta v. State of Jammu and Kashmir and others, reported in (2013) 3 SCC 514 • In case of Girdharsinh Ramsinh Parmar v. Deputy Inspector General of Police, Junagadh, reported in 1988 (2) GLR 1095 • In case of H.A.Mehta v. State of Gujarat and Another, reported in 1993 (1) GLH 899 • In case of J M Mehta v. State of Gujarat, reported in 1991 (1) GLR 619 • In case of Valiben Jethabhai Bhanji v. Patan Municipality, reported in 2006 (3) GLR 2278
10. On the other hand, learned AGP Mr.Udit Mehta submitted that the impugned order was passed by the respondent authority in public interest while exercising powers under Rule 161 of BCSR. Therefore, once the respondent authority has passed the order in public interest, by which the petitioner has been compulsorily retired from service, this Court may not interfere with the said order while exercising powers under Article 226 of the Constitution of India. He Page 10 of 35 HC-NIC Page 10 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT further contended that when the impugned order was passed, trial was pending against the petitioner for the offenses punishable under the Prevention of Corruption Act and therefore the respondent authority was of the opinion that when the integrity of the petitioner is doubtful, he is not fit to be continued beyond 55 years and therefore, the decision was taken to retire the petitioner prematurely. He further submitted that the respondent has also considered adverse remarks for the period between 199697 made in the confidential report of the petitioner and therefore when the respondent has considered the overall service record of the petitioner while passing the order, this Court may not interfere with the same. It is further contended that Mr.S.H.Prajapati was continued in the service as he had not completed 55 years at the relevant time and the petitioner had completed 55 years, hence, order of compulsory retirement was passed in case of the petitioner. Learned AGP further submitted that scope of judicial review to interfere with the decision taken by the authority is very limited in such type of cases and therefore, the petition be dismissed.
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11. Having considered the submissions canvassed on behalf of learned advocates appearing for the parties and having gone through the material produced on record, it emerges that petitioner was appointed as junior clerk in the police department on 03.08.1966. Thereafter, he was promoted as Senior Clerk in the year 1979 and thereafter, he was further promoted on the post of Head Clerk in the year 1990. Thus, in the year 1998, petitioner had completed more than 32 years of service. FIR under the Prevention of Corruption Act was registered against the petitioner and coaccused Mr.S.H.Prajapati. Petitioner was not present at the time of the alleged incident of demanding bribe or accepting the amount of bribe and he was on leave. After filing of the FIR, the chargesheet came to be filed and the trial was pending before the Sessions Court, Vadodara. At that stage, the respondent authority relying upon the Government Resolution dated 28.07.1988, reviewed the case of the petitioner who attained the age of 55 years and formed the opinion and observed that "I find that there is sufficient material available on record against head clerk 'Bengali' to reveal that his integrity is doubtful.
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I therefore decided that he is not fit to be continued beyond 55 years. He be therefore retired and three months notice pay be paid to him in advance."
The aforesaid fact stated by the respondent authority in the parawise remarks which were submitted before the Tribunal in Appeal No.519 of 1998 filed by the petitioner.
Thus, it was specific case of the respondent authority before the Tribunal that Criminal case under the Prevention of Corruption Act is pending against the petitioner and therefore, the opinion was formed that integrity of the petitioner is doubtful and therefore, the decision was taken to pass an order of compulsory retirement of the petitioner from service.
12. It also emerges from the affidavit filed by the respondent authority in the present proceedings that now the respondent has changed its version after the order of acquittal is passed by the competent Criminal Court and when the acquittal appeal preferred by the State has been dismissed by this Court at admission stage, that there were adverse remarks in the confidential report of the petitioner for the period Page 13 of 35 HC-NIC Page 13 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT between 199697. The State Government has thereafter improved its version in the subsequent affidavits and pointed out that while passing the impugned order, the respondent authority has considered the service record of last 8 to 10 years of the petitioner. Thus, it appears that the State Government has changed its version from time to time and taken a stand which is suitable to it. However, the fact remains that the first version before the Tribunal in the year 1998 was that Criminal case is pending against the petitioner and therefore, his integrity is doubtful.
13. Even the so called adverse remarks for the period of 199697 is carefully examined, it can be said that there is no remarks with regard to his integrity. It is stated in the said adverse remarks that petitioner is not quick in taking the decision so far as the work is concerned. Explanation was called from the petitioner about the same. Even if the aforesaid remarks are treated as adverse remarks, even then, the respondents have failed to produce any other material on record to suggest that except for period between 199697, there were adverse remarks in the confidential report of the petitioner for any other Page 14 of 35 HC-NIC Page 14 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT period. Thus, during the entire service record of more than 32 years, the respondent has considered adverse remarks made in the confidential report of the petitioner of only one year. It is to be recalled at this stage that petitioner has joined the services in the year 1966. Thereafter, he was promoted in the year 1979 and thereafter once again promoted on the post of Head Clerk in the year 1990. Thus, if the overall service record of the petitioner is examined, it can be said that except so called adverse remarks for the year 199697, nothing adverse against the petitioner which is placed on record by the respondent.
14. Now so far as the criminal case which was registered against the petitioner under the Prevention of Corruption Act is concerned, the petitioner has been acquitted by the competent Criminal Court alongwith coaccused Mr.S.H.Prajapati. It is also borne out from the record that the State Government preferred acquittal appeal being Criminal Appeal No.1318 of 1999 before this Court. However, this Court has dismissed the said appeal at an admission stage by an order dated 03.10.2000. Thus, when the Page 15 of 35 HC-NIC Page 15 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT petitioner has been acquitted in the aforesaid Criminal Case, it cannot be said that integrity of the petitioner was doubtful. At this stage, it is required to be noted that so far as case of the co accused Mr.S.H.Prajapati is concerned, he was co accused in the criminal case which was filed against the petitioner. Said Mr.Prajapati was also acquitted by the trial Court. The respondent has revoked the order of suspension against the said employee and reinstated him in the service. Even after the order of acquittal has been passed by the Criminal Court, no departmental inquiry was held against the said employee. He was thereafter promoted and permitted to retire on attaining the age of superannuation. Thus, so far as the case of the petitioner is concerned, without waiting for the result of the criminal trial which was pending against him, the impugned order was passed by the respondent authority. The respondent authority has given discriminatory treatment to the petitioner. The respondent authority could have initiated the departmental inquiry against the petitioner as well as Mr.Prajapati for the alleged incident of demanding bribe from the complainant. No Page 16 of 35 HC-NIC Page 16 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT such inquiry was held against the petitioner. It was always open for the respondent authority to initiate departmental inquiry against an employee even after the order of acquittal has been passed by the Criminal Court. Thus, instead of initiating the departmental inquiry against the petitioner, short cut was adopted by the respondent and thereby, the impugned order has been passed, by which, the petitioner has been retired prematurely.
15. In the case of Rajesh Gupta (supra), relied upon by learned advocate Mr.Joshi, appearing for the petitioner, the Hon'ble Supreme Court has observed and held in paragraphs No.8, 9, 20, 21, 22, 29, 30 and 31 as under:
"8. We may also notice at this stage that the appellant had a spotless service record throughout 24 years of service. In the annual performance report for the period 1.4.1997 till 31.3.1998, his work has been assessed as 'Good'. The reviewing authority has graded the appellant as a 'Very Good Officer'. Against the column of integrity, the remark is 'Excellent'. Similarly, for the year 19981999, he was assessed as 'Good officer' and having 'excellent' integrity. In the annual performance report for the year 19992000 again his integrity is said to be 'Excellent'. He has been assessed as a very capable and efficient officer. The overall assessment given by the reviewing authority Page 17 of 35 HC-NIC Page 17 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT is 'A very good officer'. For the year 2000 2001, the annual performance report again records that the appellant is 'A good officer' with good integrity. A separate assessment was given on 12th March, 2005 for the period 27th October, 2001 to 29th July, 2002 and thereafter from 23rd October, 2002 till 23rd December, 2002. This annual performance report was recorded by the Deputy Commissioner, Jammu for the period of 11 months. In the aforesaid two tenures, the work and conduct of the appellant was found to be good. It is also recorded that no complaint was brought to the notice of the reporting officer. For the year 2003 2004 against the column integrity, it is mentioned that 'nothing against came in notice'. The reporting officer has said 'he is a very good field officer'. The reviewing officer assessed the appellant as 'An outstanding officer'.
9. In spite of having a blemishfree record of service as noticed above, the appellant was directed to be prematurely retired by order dated 26th April, 2005 on the basis of the recommendations made by the High Powered Review Committee. The conclusion on the basis of which the recommendations for retirement of the appellant has been made are as under: "5. As per inputs provided by the Additional DG CID the officer has amassed property disproportionate to his known sources of income which include a palatial house at Krishna Colony Kathua built over about 3 kanals of land; two shops in Kathua market; six kanals of land in Kathua town, one kanal of land at Trikuta Nagar Jammu (Sector No.3), two kanals of land at Trikuta Nagar extension, three kanals of land at Greater Kailash Colony, Jammu; 10 marla plot at Bhatiandi and bank account and lockers in United Commercial Bank, R.N.Bazar and Vijay Bank, Page 18 of 35 HC-NIC Page 18 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT Purani, Mandi, Jammu.
20. The principles on which a government servant can be ordered to be compulsorily retired were authoritatively laid down by this Court in the case of Baikuntha Nath Das (supra). In Paragraph 34, the principles have been summed up as follows :
"34. 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.
(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[pic]taking a decision in the matter -- of course attaching more Page 19 of 35 HC-NIC Page 19 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT 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 circumstance by itself cannot be a basis for interference.
Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above.
21. The aforesaid principles have been re examined and reiterated by this Court in the case of Nand Kumar Verma (supra). The principles have been restated as follows :
34. It is also well settled that the formation of opinion for compulsory retirement is based on the subjective satisfaction of the authority concerned but such satisfaction must be based on a valid material. It is permissible for the courts to ascertain whether a valid material exists or otherwise, on which the subjective satisfaction of the administrative authority is based. In the present matter, what we see is that the High Court, while holding that the track record and service record of the appellant was unsatisfactory, has selectively taken into consideration the Page 20 of 35 HC-NIC Page 20 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT service record for certain years only while making extracts of those contents of the ACRs. There appears to be some discrepancy. We say so for the reason that the appellant has produced the copies of the ACRs which were obtained by him from the High Court under the Right to Information Act, 2005 and a comparison of these two would positively indicate that the High Court has not faithfully extracted the contents of the ACRs.
* * *
36. The material on which the decision of the compulsory retirement was based, as extracted by the High Court in the impugned judgment, and material furnished by the appellant would reflect that totality of relevant materials were not considered or completely ignored by the High Court. This leads to only one conclusion that the subjective satisfaction of the High Court was not based on the sufficient or relevant material. In this view of the matter, we cannot say that the service record of the appellant was unsatisfactory which would warrant premature retirement from service. Therefore, there was no justification to retire the appellant compulsorily from service.
22. 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.Page 21 of 35
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(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 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."
...
...
29. The report also does not indicate that there is any irregularity in the bank accounts maintained by the appellant. The affidavit filed on behalf of the State of Jammu and Kashmir clearly shows that according to the Vigilance Organization, three First Information Reports bearing Nos. 49/91, 11/95 and 63/94 were registered by the State Vigilance Organization against the appellant when he was posted as Executive Engineer (REW, Kathua). Upon investigation, Page 22 of 35 HC-NIC Page 22 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT all the FIRs were found to be "Not Proved". However, recommendation was made to initiate departmental action against the officer. Inspite of the aforesaid recommendation, it has not been disputed before us, that no departmental action was ever initiated against the appellant. In fact, after the completion of the investigation into the FIRs, the appellant was promoted to the post of Executive Engineer on 15.12.1996. Therefore, it can be safely concluded that there were no material before the High Powered Committee to conclude that the officer possessed assets beyond his known source of income.
30. This now takes us to the other material on the basis of which the recommendation has been made by the High Powered Committee. It has been noticed by us earlier that the appellant was required, in the performance of his official duties, to recommend the sanctioning of technical approval to the construction of works of various projects. The allegation with regard to issuing back dated technical sanctions was duly inquired into. The conclusion ultimately reached by inquiry officer noticed in the earlier part of the order indicates that at best the appellant acted in a casual and haphazard manner in the maintenance of records. Such negligence on the part of the appellant cannot per se lead to the conclusion that the appellant was acting in such a manner with an ulterior motive. The conclusions reached by the High Powered Committee also do not corelate to the assessment of work and integrity of the appellant in the annual performance report. As noticed earlier, in all the annual performance reports, the officer has been rated 'very good', 'excellent' and even 'outstanding'.
31. In view of the aforesaid, the conclusion is inescapable, that the order passed by Page 23 of 35 HC-NIC Page 23 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT the State Government suffers from vice of arbitrariness. The High Court erred in arriving at conclusions which were not borne out by the record produced before the High court. In view of the settled law, it is not possible for us to uphold the judgments of the Single Judge as also of the Division Bench.
16. In the case of H.A.Mehta (supra), this Court observed and held in paragraphs No.18 to 20 as under:
"18. The question is as to what is the scope of such power of judicial review ? are the courts justified in re appreciating and re assessing evidence and material and in reaching conclusions different from that reached by the appropriate authority ? should the courts dwelve deep into the service record and try to find out factors favourable to the employee by ignoring factors which are quite relevant and material to the foundation of public administration? should the courts sit in appeal over the order of decision of the appropriate authority ? answers to all such questions are in negative and the jurisdiction and scope of judicial review is very limited. When the court is satisfied that the exercise of power under this rule amounts to colourable exercise of power or is arbitrary or mala fide it can always strike down the order. However as observed by justice v. H. Krishna iyer in the case of baldevraj chadha v. Union of india (supra) judicial monitoring becomes an unpleasant necessity where power may be humour and a career may be a victim. Potential compulsory retirement under rule 161 haunting the afternoon of official life injects an awesome uncertainity which makes even the honest afraid the efficient tremble and almost everyone genuflect. Since exercise of such power has very drastic consequences on the govt. Servants in the evening of his career Page 24 of 35 HC-NIC Page 24 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT and since the scope of judicial review is staled to be very limited it becomes the duty of the court to sedulously check exercise of such power. The adverse effect of the order on the govt. Employee cannot be better stated that in the words of justice krishna iyer in the case of baldevraj chadha v. Union of india (supra). Justice krishna iyer observed in the case aforesaid as under:
"The administration to be competent must have servant who are not plagued by uncertainity about tomorrow. At the age of 50 when you have family responsibility and the sombre problems of ones own lifes evening your experience accomplishments and fullness of fitness become an asset to the administration if and only if you are not harried or worried by what will happen to me and my family ? where will i go if i cashiered ? how will i survive when i am too old to be newly employed and too young to be superannuated ? these consideration becomes all the more important in departments where functional independence fearless scrutiny and freedom to expose evil or error in high places is the task. And the ombudsmanic tasks of the office of adult vested in the c and ac and the entire army of monitors and menions under him are too strategic for the nations financial health and discipline that immunity from subtle threats and oblique overaweing is very much in public interest. So it is that we must emphatically state that under the guise of public interest if unlimited discretion is regarded acceptable for making an order of premature retirement it will be the surest menace to public interest and must fail for unreasonableness arbitrariness and disguised dismissal. To constitutionalise the rule we must so Page 25 of 35 HC-NIC Page 25 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT read it as to free it from the potential for the mischiefs we have just projected. The exercise of power must be bona fide and promote public interest. There is no demonstrable ground to inter mala fide here and the only infirmity alleged which deserves serious notice is as to whether the order has been made in public interest. When an order is challenged and its validity depends on its being supported by public interest the state must disclose the material so that the court maybe satisfied that the order is not bad for want of any material whatever which to a reasonable man reasonably instructed in the law is sufficient to sustain the grounds of public interest justifying forced retirement of public servant. Judges cannot substituted their judgment for that of the administrator but they are not absolved from the minimal review well settled in administrative law and founded on constitutional obligations. The limitations on judicial power on this area are well known and we are confined to an examination of the material merely to see whether a rational mind may conceivably be satisfied that the compulsory retirement of the officer concerned is necessary".
19. It becomes clear from the above observations that under the guise of public interest if unlimited discretion is regarded acceptable for making the order of premature retirement it will be the surest menace to public interest and it must fail for unreasonableness arbitrariness and disguised dismissal. Shortly speaking in order to succeed in an action challenging the order of premature retirement the authority exercising power must prove that the exercise of power is bona fide and is to promote public interest. The authority must disclose the material based on which the order is passed Page 26 of 35 HC-NIC Page 26 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT and the court must be satisfied that the order is not bad for want of any material whatever which to a reasonable man reasonably instructed in the law is sufficient to sustain the ground of public interest. I however the court cannot substitute its judgment for that of the authority but the courts are not absolved from the minimal review well settled in administrative law and founded on constitutional obligations.
20. Whether there is colourable exercise of power or the authority is lacking any bona fide while passing the order can be tested by ascertaining and finding out. As to whether the authority has taken into consideration the factor which were irrelevant and or extraneous or whether it has failed to take into consideration the factors which were relevant and material. From the enquiry the courts have tried to justify the exercise of powers. When the court was satisfied that the decision was vitiated by taking into consideration irrelevant and extraneous factors of by ignoring relevant and material factors it has invalidated such action on the ground that the order was passed in colourable exercise of powers.
20 A. From this enquiry a new line of reasoning is developed. The question is as to whether the authority should consider the entire service record and the confidential reports of an employee or it should only consider the service record and confidential reports of 5 to 10 years immediately preceding the date of retirement? further question is as to whether the order of compulsory retirement is necessarily bad if the authority has taken into consideration the reports of remote past so as to justify the action by ignoring the reports of recent service career of the employee ? further question may also arise as to whether a Page 27 of 35 HC-NIC Page 27 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT subsequent factum of promotion to a govt. Employee necessarily renders his earlier service record beyond scope of consideration by the authority exercising power of premature retirement ? whether a purely administrative action of permitting a govt. Employee to cross e. B. Would also put his entire service record prior thereto outside the field of consideration while assessing his suitability for continuance in service beyond the age of 50 years? enquiry into all these aspects has gradually resulted into widening the scope of judicial review. In fact power of premature retirement which was once stated to be absolute power is now subjected to a detailed judicial scrutiny under the heading of colourable exercise of powers. What is relevant and what is not relevant. What should be looked into and what should not be looked into for assessing fitness of the employee for continuance in service is indirectly taken into judicial scrutiny and very often the order of premature retirement is avoid on the ground that the authority has taken into consideration irrelevant and extraneous factors or has failed to take into account the relevant or get mane factors."
17. In case of J.M.Mehta (supra), this Court observed and held in paragraphs No.16 as under:
"16. The Division Bench of this court in Special Civil Application No. 28 of 90 decided in October 1990 following the above referred decision of the Supreme Court and in the context of Rule 161 of the Bombay Civil Service Rules found that "even if the order of premature retirement is couched in innocuous language without making any imputations against the Govt. servant who is directed to be compulsorily retired from service, the court if challenged, in appropriate cases, can lift the veil to find Page 28 of 35 HC-NIC Page 28 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT out whether the order is based on any misconduct of the Govt. Servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes". In the case before the Division Bench, the court found that the employee in that case was not only permitted to cross Efficiency Bar but he was promoted to the higher post. The court, therefore, found that the employee could not be regarded as "dead wood". The court found that it was the case of the State Govt. in its affidavit reply that number of departmental enquiries were pending against the employee and it was further their case that the integrity of the employee was doubtful. The Division Bench, therefore, found that in fact the order passed against the employee was not an order of premature retirement simpliciter in exercise of powers conferred by Rule 161 of Bombay Civil Service Rules, but in pith and substance, it was a punitive order; the order was a shortcut to a regular departmental enquiry under Article 311 of the Constitution of India."
18. In the case of Valiben Jethabhai Bhanji (supra), this Court observed and held in paragraphs No.13 and 17 as under:
"13 ...
...
It may be noted that the term compulsory retirement is often used for nonpenal premature retirement. One may, however, not lose sight of the fact that there is a distinct difference between these two kinds of retirements, namely, penal retirement upon departmental inquiry on the basis of proved misconduct which normally results into disentitling an employee from seeking any pensionary benefits and a nonpenal retirement referred to as the premature or Page 29 of 35 HC-NIC Page 29 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT compulsory retirement upon completion of certain number of years of service in which case the employee retains all the benefits of the past service and is entitled to full post retiral benefits on that basis. One may also notice that in recent past, voluntary retirements pursuant to voluntary retirement schemes are getting currency. Employers often come up with voluntary retirement schemes to reduce the staff and the salary burden. Such schemes are construed as an invitation to offer as was held by the Hon'ble Supreme Court in the case of Bank of Inida v. O.P.Swarnakar, reported in (2003) 2 SCC 721.
...
...
17. Upshot of the above judicial pronouncements would be that the concept of compulsory retirement as a nonpenal termination of the employee upon crossing certain age but before crossing the age of superannuation in terms of the service rules has received definite connotation. Such powers are required to be exercised in public interest. The concept of compulsory retirement public interest in this context is understood to be the requirement of administration to energize itself for better and more efficient administration and in this regard it is found that it is always open for the employer in exercise of such powers to weed out the dead wood, to remove inefficient and to augment the efficiency and integrity in public service. It is found that the Government has power to weed out the dead wood, inefficient, corrupt and people of doubtful integrity by compulsorily retiring them from service. It can thus be seen that in the context of the powers of the employer to compulsorily retire an employee without holding an inquiry, the same must be based on public interest as is understood in the context of several decisions of the Hon'ble Supreme Court, Page 30 of 35 HC-NIC Page 30 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT reference to some of which have been made hereinabove. The crux of the matter therefore would be that such powers can be exercised in public interest to improve the efficiency of the administration and in that sense such powers can be exercised either to weed out dead wood or to remove inefficient employees or to remove the persons of doubtful integrity. In my opinion, the term public interest in context of such powers cannot be given such a wide meaning as to include any and every question of public importance or interest as is sought to be done by the respondent in the present case. In the ordinary sense of the term though to downsize the work force or to reduce the salary burden, may be considered as public interest, in my opinion, reference to such a purpose is not to be included for the purpose of exercising powers of compulsorily retiring an employee before he attains the age of superannuation. Nature of powers enjoyed by employer under such provisions have been discussed and outlined by various decisions cited hereinabove. There is reasonable guarantee that an employee will be permitted to discharge his duties till he crosses the age of superannuation. As observed in the case of Doshi Fatechan Morarji (supra) normal age of superannuation cannot be left at the sweet will or caprice of the employer."
19. Relying upon the aforesaid decisions rendered by the Hon'ble Supreme Court and this Court, this Court also passed an order on 02.03.2016 in Special Civil Application No.5241 of 2000 and in the said case, this Court has summarized the principles laid down in paragraph No.22 as under:
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HC-NIC Page 31 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT "22. From the aforesaid decisions rendered by the Hon'ble Supreme Court as well this Court following points would emerge.
A. An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior.
B. 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.
C. The principles of natural justice have no place in the context of an order of compulsory retirement. However, the judicial scrutiny is not excluded, High Court did not examine the matter as an Appellate Court, but High Court has jurisdiction to interfere with the order of compulsory retirement if the order is based I) malafide, ii) that it is based on no evidence, or iii) that it is arbitrary, iv) or perverse order.
D. The order of compulsory retirement shall not be passed as a short cut to avoid departmental inquiry when such course is more desirable.
E. Compulsory retirement shall not be imposed as punitive measure.
F. Any adverse entries made in the confidential record shall be made note of and be given due weightage in passing such order."
20. Thus, keeping in mind the aforesaid guidelines, if the facts of the present case are considered which are discussed herein above, it can be said that the impugned decision taken by the respondent authority is Page 32 of 35 HC-NIC Page 32 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT arbitrary and the said order can be said to be a perverse order. The respondent authority has passed the order of compulsory retirement as a shortcut to avoid departmental inquiry as observed herein above. The said course was open with the respondent and the said course was more desirable in the facts of the case. The respondent has even discriminated the petitioner. Mr.Prajapati was reinstated in service after revoking the order of suspension. When the Trial Court has acquitted the petitioner as well as said Mr.Prajapati, no departmental inquiry was held against said Mr.Prajapati. If at the relevant time in the year 1998 when the impugned order was passed against the petitioner, the authority was of the opinion that the integrity of the petitioner was doubtful, then the said respondent authority ought to have considered the case of Mr.Prajapati and also ought to have opined that integrity of Mr.Prajapati was also doubtful. No inquiry was held against Mr.Prajapati and he was promoted. It is once again observed that respondent has wrongly placed reliance upon the adverse remarks for the year 199697. The respondent ought to have considered the entire service Page 33 of 35 HC-NIC Page 33 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT record of the petitioner and as observed herein above, the respondent has not placed any material on record to suggest that except the adverse remarks for the period 199697, in any other period whether there is any adverse remarks against the petitioner or not and whether there was any punishment imposed on the petitioner or not. On the contrary, petitioner was promoted in 1979 and 1990.
21. In view of the aforesaid discussion, it can be said that the impugned order of compulsory retirement of the petitioner was passed as a punitive measure and was nothing but a shortcut to avoid departmental inquiry. The said order is also arbitrary and perverse and therefore, this Court is having power to interfere with the said order while exercising powers under Article 226 of the Constitution of India, though this Court is conscious of the fact that the scope of judicial review is limited, in the facts of the present case, said powers are required to be exercised.
22. Order of compulsorily retirement was passed at the time when the petitioner has attained 55 years of Page 34 of 35 HC-NIC Page 34 of 35 Created On Wed Mar 16 00:42:40 IST 2016 C/SCA/4803/2001 JUDGMENT age. Petitioner was due to retire in November 2001 on attaining the age of superannuation and therefore, the respondents are directed to give him all the consequential benefits as if the order of compulsory retirement was not passed on 29.08.1998.
23. Accordingly, impugned order is hereby quashed and set aside. Respondents are directed to give all the consequential benefits to the petitioner.
24. Petition is accordingly allowed. Rule is made absolute. No order as to costs.
(VIPUL M. PANCHOLI, J.) ANKIT Page 35 of 35 HC-NIC Page 35 of 35 Created On Wed Mar 16 00:42:40 IST 2016