Gujarat High Court
J.M. Mehta vs State Of Gujarat on 20 December, 1990
Equivalent citations: (1991)1GLR619, (1992)IILLJ282GUJ
JUDGMENT
1. This petition under Article 226 of the Constitution of India is directed against the order of premature retirement of the petitioner on his completing the age of 50 years from the post of Sales Tax Recovery Mamlatdar, Rajkot, in excercise of powers conferred on the Government under the provisions of Rule 161(1) of the Bombay Civil Service Rules, 1959 by order, dated 23rd September 1976. The petitioner is prematurely retired with effect from 31st December 1976.
2. The facts giving rise to the Present Petition, briefly stated, are as under :-
(i) The petitioner was recruited as Junior Clerk in the office of Collector at Kaira on January 4, 1944, and on his passing departmental examination he was promoted to the post of Aval Karkun in Kaira District. In the year 1965-66 certain allegations were made against the petitioner based on which a criminal complaint was lodged against him. The petitioner was also placed under suspension by order dated November 13, 1967 pursuant to the criminal complaint. However, it was found that the allegations levelled against the petitioner could not be substantiated, and therefore, the order of suspension was cancelled, and he was reinstated with effect from January 2, 1969. In exercise of the powers conferred upon the authority under Rule 152(2) of the Bombay Civil Service Rules, the period of suspension was ordered to be treated as on duty for all purposes.
(ii) The petitioner was, thereafter, promoted to the post of Mamlatdar, and he was posted to officiate as Mamlatdar at Deesa. The said order 25 of promotion was passed on 5th October 1971.
(iii) The petitioner, thereafter, received the impugned order, dated 23rd September 1976, whereby he is prematurely retired on his attaining the age of 50 years, with effect from 31st December 1976. Thereupon, the petitioner instituted Special Civil Application No.2076/76 in this court challenging the order of his premature retirement. On perusing the record of the said Special Civil Application it appears that notice was issued on the respondents on 20th December 1976 and said notice was made returnable on 23rd December 1976. Mr. N. M. Doshi appeared for the respondents and waived the service of notice. The respondents appeared and one N. K. Dholakia, Section Officer, Revenue Department, filed affidavit-in-reply on December 23, 1971. In said affidavit-in reply the respondents, inter alia justified the issuance of order of premature retirement contending that a Review Committee was constituted to consider the cases of officers and Mamlatdars for their continuance or otherwise in Government service on their attaining the age of 50 years, and the cases of 27 Mamlatdars were considered by the said Review Committee. It was also stated that after perusing the service record of the petitioner and his confidential report, the said Committee recommended the premature retirement of the petitioner on his attaining the age of 50 years and the said recommendations were accepted by the Government. It was also stated that the Gujarat Vigilance Commission has also agreed with the decision of the Government to retire the petitioner prematurely on his completing the age of 50 years. The petitioner has filed his affidavit-in-rejoinder on December 27, 1976.
(iv) On the aforesaid record of the petition on January 13, 1977 when the said Special Civil Application was posted for admissional hearing before Mr. Justice J. B. Mehta (as he then was) following order was passed :-
"The petitioner unconditionally withdraws this petition. Petition, accordingly, stands withdrawn. Notice is, therefore, discharged with no orders as to costs."
(v) It is the case of the petitioner in this petition that the said Special Civil Application was withdrawn by him because the Government of Gujarat had appointed a Special Committee to examine all the cases of premature retirement and dismissal during emergency. Petitioner further avers that he has filed his representation before the said Special Committee and his representation was rejected by the Government. It is the case of the petitioner that along with him five other persons serving as Mamlatdars were prematurely retired in the year 1976 and that the Government reconsidered all the cases of premature retirement and four out of those five persons were, in fact, reinstated, and the orders of their premature retirement were cancelled. However, in the case of the petitioner, no such order was passed, and therefore, according to the petitioner, he has no other option but to move this court under Article 226 of the Constitution of India, inasmuch as the order passed against him was punitive in character and was arbitrary and not passed on any valid and justifiable reason.
3. It is in the background of the above-mentioned facts, that his petition is required to be decided. When this petition was posted for admissional hearing notice was ordered to be issued on the respondents and the same was made returnable on 13th December 1979. It appears that the respondents appeared in response to the notice and ultimately Rule Nisi was issued on December 27, 1979 and the hearing of the petition was expedited. On behalf of respondents, C. R. Desai, Under-Secy. to Government of Gujarat, Revenue Department, has filed the affidavit in reply, dated October 20, 1983, and further affidavit is also filed by Jitendra S. Dave, Under-Secretary, Government of Gujarat, Revenue Department, dated 29th December 1988.
Maintainability of the Petition :
4. Before 1 proceed to deal with the submissions made by Mr. M. R. Anand, learned advocate appearing for petitioner, I shall deal with the preliminary objections raised by the respondents regarding the maintainability of this petition. Miss Rekha Doshit, Asst. Govt. Pleader appearing for respondents, contends that the petitioner has unconditionally withdrawn the Special Civil Application No. 2076/76 which was directed against the very order of premature retirement, dated September 23, 1976. The petitioner having thus unconditionally withdrawn the petition is now precluded from filing another petition with respect to the same cause of action on principle analogous to one enacted under order 23 Rule 1 of the Civil Procedure Code. She further submits that no right was reserved to the petitioner when the earlier order dated January 13, 1977 was passed nor was any liberty given to the petitioner to institute fresh petition on the same cause of action. She submits that the petitioner has, in fact, waived or abandoned the right to challenge the said order, and therefore, he was precluded from filing the present petition.
5. She also invites the attention of the court to the submissions made in para 5 of the memo of Spl. C.A. wherein the petitioner categorically admits that he had challenged the said order of premature retirement by instituting Special Civil Application No. 2076/76 and prayed for interim relief against the implementation of the said order. The petitioner has further averred in the said paragraph that the Honourable Court was not pleased to grant any interim relief. Petitioner withdrew the said Special Civil Application, because, according to the petitioner, the Government of Gujarat had appointed a Special - Committee to examine all the cases of premature retirement and dismissal during emergency and that in fact the petitioner has filed his representation before the said Special Committee. Since the said Special Committee rejected the representation of the petitioner he has approached this court. According to Miss Doshit, on the averments made in the petition, the petition deserves to be dismissed. She also invited my attention to the affidavit-in-reply and the objections raised by the respondents to the maintainability of the petition. In the affidavit - in reply the respondent inter alia averred as under :
"At the time of hearing for admission of the said Special C.A. the allegations against Shri Mehta which led the Review Committee for recommending his premature retirement were brought to the notice of the Hon'ble High Court. Thereafter, Shri Mehta unconditionally withdrew the writ petition and notice was, therefore, discharged by the High Court."
Miss Doshit, therefore, submits that the bar analogous to one created by the Order 23 Rule 1 C.P. Code will apply. She also invites my attention to the decisions of the Supreme Court in the case of Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior & Ors. reported in (AIR) 1987 SC 88. In the said judgment the Supreme Court in terms held that the petitioner who has unconditionally withdrawn the petition filed under Article 226 of the Constitution of India without permission of the Court to file a fresh petition in respect of same cause of action cannot file fresh petition in the High Court, and that principle underlying Order 23 Rule 1(3) of the Civil Procedure Code is required to be extended to the proceedings under Articles 226/227 of the Constitution of India, both in the interest of administration and justice as well as on the ground of public policy. The Supreme Court having examined the distinction between "abandonment" and "withdrawal" of a proceeding noticed that it is the policy of the law to preclude a person from instituting any proceeding noticed in respect of the said subject-matter or part of the same subject-matter. The Court further observes that law confers upon a man no right or benefit which he does not desire. A person who waives or abandons a right will lose it. The object of rules appears to prevent the litigant from abusing the process of the court by instituting suits, again and again, on the same cause of action without any good reason. The court, thereafter, proceeded to examine the misuse of said provision whereby the petitioner would unconditionally withdraw the petition or any proceeding and would once again, agitate the very cause of action. The court made the following pertinent observations :
"It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his Counsel finds that the court is not likely to pass an order admitting the petition, request is made by the petitioner or his Counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawl of the petition. It is plain that when once writ petition filed in a High Court is withdrawn by the petitioner himself, he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court."
6. Miss Doshit also drew my attention to the decision of the Division Bench of this Court in the case of Natwar Textile v. Union of India reported in 1990(1) G.L.H. 368. The Division Bench of this court following decision of Supreme Court in the case of Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior (supra) held that the principles analogous to the provisions of Order 23 Rule 1 of C.P. Code are applicable to the proceedings u/Arts. 226/227 of the Constitution of India, and that the said principle is extended on the ground of public policy as well as with a view to preventing a litigant from abusing the process of the court by instituting suits, again and again, on the same cause of action without any good reason.
7. The petitioner has, by filing Civil Application No. 2091/90, applied for permission to amend the memo of Special Civil Application. The said Civil Application is granted and para 13(a) is introduced. By the said amendment the petitioner wants to urge before this court that subsequent to the withdrawal of earlier Special Civil Application the respondents have constituted a Special Committee to examine the cases of premature retirement during emergency. According to the petitioner his case was also reviewed by the said Special Committee and the petitioner has also made his representation. The said representation of the petitioner was rejected by order, dated February 16, 1979 whereby the petitioner was informed that after fully considering his application it has been decided by the Government not to reinstate him in service and not to cancel the order of premature retirement. The said order, dated February 16, 1979 is also now challenged by the petitioner. In fact, in the memo of Special Civil Application as it stood prior to its amendment the petitioner has also laid foundation for challenging the subsequent action of the Government. The respondents have also in their affidavit-in-reply clearly stated that a Sub-Committee of the cabinet was constituted under Government Resolution, dated May 6, 1977 to review the cases of officers who were retired prematurely on their attaining the age of 50 years during the period from April 1, 1976 to May 6, 1977. According to respondents the case of the petitioner was, therefore, reviewed in the meeting of Sub-Committee held on 28th December 1977 and the committee upheld the Government's decision to retire the petitioner prematurely in view of the departmental action/departmental enquiry pending against the petitioner, and also because the petitioner had withdrawn his earlier writ petition.
8. In view of the facts stated hereinabove, and more particularly, after the amendment to memo of Special Civil Application, the preliminary objections raised by Miss Rekha Doshit, Asst. G.P. for respondents is required to be appreciated. It is undisputed that the petitioner did file the Special Civil Application No. 2076/76 challenging the order d premature retirement and that the said Special Civil Application was unconditionally withdrawn. The present Special Civil Application, as stood prior to its amendment, undoubtedly was directed against the very order of premature retirement which was the subject-matter of challenge in the earlier petition.
9. Miss Doshit rightly points out that the earlier order of withdrawing the petition was not with a view to enable the petitioner to make a representation to the Government against the order of premature retirement. She also points out that the petitioner has not withdrawn the petition to approach the Sub-Committee. In fact, according to her Sub-Committee was not constituted in the month of January 1977, and the petitioner, therefore, could not have withdrawn the petition solely with a view to approach the Sub-Committee.
10. However, Mr. Anand, learned Counsel appearing for petitioner, presses into service the following factors :
(A) Firstly, Mr. Anand submits that subsequent to the withdrawal of the petition the Government itself has thought it fit to review all the cases of premature retirement passed during the period from April 1, 1976 to 8th May 1977. In fact, the respondents in their affidavit reply categorically stated that a Sub-Committee of the Cabinet was constituted to review the cases of premature retirement during the said period on their attaining the age of 50 years. It is also the case of the respondents that the said Sub-Committee held its meeting on 28th December 1977 and the case of the petitioner was reviewed by the said Committee and the Sub-Committee upheld the decision of the Government to retire petitioner prematurely in view of the deparmental action/departmental enquiry pending against the petitioner, and also in view of the fact that he has withdrawn his earlier petition. Mr. Anand, therefore, submits that in view of the subsequent happenings and the conduct of the respondents in reviewing the cases of premature retirement of employees during the relevant period the bar arising from the abandonment of cause of action would not apply.
(B) Secondly, Mr. Anand submits tht the subsequent conduct of the respondents in reopening the cases of premature retirement during relevant period also is a pointer to the fact that the cases of premature retirement during the emergency were required to be reconsidered.
(C) Thirdly, Mr. Anand submits that the court shall have to keep in mind the principles underlying the Order 23 Rule 1 of the Civil Procedure Code as extracted hereinabove. The principle underlying the Order 23 Rule 1 of the Civil Procedure Code is based on public policy also with a view to prevent the litigant from abusing the process of the court. It is not sound public policy to deny even the remedy of approaching the court to the petitioner, submits Mr. Anand, on the ground of abandonment of cause of action when the Government itself has found it necessary to review the cases of premature retirement during the relevant period.
(D) Fourthly, Mr. Anand submits that during the relevant period because of proclamation of emergency and proclamation is issued under Art. 348 of the Constitution of India, the fundamental rights were suspended and the petitioner could not have, therefore, invoked the Arts. 14 & 16 of the Constitution of India.
(E) Lastly, Mr. Anand submits that the court should also keep in mind the fact that a large number of petitions were withdrawn during emergency since resort to remedy under Article 226 of the Constitution of India was not permissible for enforcement of fundamental rights, and therefore, also the present petition should not be dismissed solely on the grond of abandonment of cause of action. Mr. Anand also submits that in view of the amendment to the petition present petition cannot be said to be one which is based on the same cause of action and subsequent objection of his representation gives him right to file the present petition.
11. Having given my anxious thought to the submissions of both the parties, I am of the opinion that the present petition u/Art. 226 of the Constitution of India cannot be dismissed solely on the ground of bar of Order 23 Rule 1 of C.P. Code. After unconditional withdrawal of the first petition subsequent conduct of the Government shows that it suo motu reviewed the orders of premature retirement passed between Ist April 1976 to 6th May 1977. It is also admitted fact that the case of the petitioner was also reviewed by the Sub-Committee. The orders of premature retirement passed against Mamlatdars mentioned in para 6 of the memo of Special Civil Application were cancelled, and they were ordered to be reinstated. However, the Government decided not to cancel the order of premature retirement against the petitioner. This exercise of reviewing of the cases of premature retirement was undertaken by the Government after the withdrawal of the first petition. The petitioner is informed in the year 1979 that his representation has been carefully considered by the Govt. and that the Government is not inclined to accept his representation since the decision to retire the petitioner prematurely was taken after due consideration. The communication of the subsequent order as well as the subsequent conduct of the Government in reviewing the cases of all the employees who were prematurely retired during the two relevant mates provides fresh cause of action to the petitioner. The petitioner is, therefore, entitled to file the present petition of fresh cause of action. Even otherwise, the bar created by Order 23 Rule 1 of C.P. Code cannot be and should not be read as an absolute bar so as to preclude the litigant from invoking the jurisdiction of the Court under Art. 226 of the Constitution of India in cases where there exist good reasons for entertaining the petitions or where subsequent developments or events call for the interference of the court in the interest of justice. When the court is convinced that the withdrawal of earlier petition was not an attempt on bench hunting and that in fact the order passed against the litigant was required to be reviewed by the Government itself, the court cannot debar him from approaching the court simply on the ground that the earlier petition was withdrawn by him unconditionally. In my opinion, it could not be said that the petitioner was abusing the process of the court inasmuch as after withdrawal of the first petition he represented his case before the Government, and in fact, the Sub-committee of the Cabinet appointed by the Government reviewed the cases of the premature retirement of all the employees during the two relevant dates and the case of the petitioner was also reviewed. Therefore, the bar created by Order 23 Rule 1 of C.P. Code would not apply and the present petition cannot be dismissed on the ground that the petitioner is precluded from filing the present petition in view of unconditional withdrawal of earlier petition.
Premature retirement and jurisdiction of the court to review the same :
12. Mr. M. R. Anand, learned advocate appearing for petitioner, challenges order of premature retirement of the petitioner on the following grounds :
(i) Power u/section 161 of Bombay Civil Service Rules could be exercised only in public interest and since the order of premature retirement was passed on 23rd September 1976, after promotion of the petitioner to the higher post of Mamlatdar in the year 1971, the order was vitiated by colourable exercise of power inasmuch as it was arbitrary and based on extraneous, non-germane and irrelevant considerations;
(ii) The impugned order of premature retirement is, in fact, punitive in character and is based on specific misconduct attributed to the petitioner and it is a camouflaged order of dismissal/removal and or it is short-cut adopted with a view to obviate the procedure prescribed under Article 311 of the Constitution of India;
(iii) The petitioner having been promoted as back as 1971, in the absence of any adverse remarks communicated to the petitioner thereafter the order of premature retirement passed on any material gathered prior to the date of promotion, is indirectly based on non-existent and irrelevant material and therefore also the order is vitiated.
13. In order to appreciate the legal submissions made by the learned Counsel for petitioner, a close look at factual background as it existed on the date of order is required to be made. It is also required to be kept in mind that it is an undisputed position that the petitioner was promoted as Mamlatdar on 5th October 1971. There is no dispute about the fact that after that date no adverse remarks are communicated to the petitioner nor were any adverse remarks posted in his confidential report. Petitioner is not given any notice nor is any intimation given to him, about his inefficiency and/or failure in performance of his duties.
14. The respondents in their affidavit-in-reply justified the order of premature retirement. In the affidavit-in-reply filed by one C. R. Desai, Under-Secy. to the Govt. of Gujarat, Revenue Department, the case of the petitioner on his completing the age of 50 years on 2nd February 1976 was required to be reviewed for continuation or otherwise in Government service beyond the age of 50 years as per the instructions issued under Govt. GO. No. ALS 3667-1067(37)-S, dated 15th May 1970. In para 6 of the said Govt. Circular, it is inter alia, provided that in case of Government servant whose integrity is in doubt, the Committee can consider him for premature retirement, irrespective of an assessment of his ability or efficiency in work. Accordingly, Review Committee consisting of three persons was constituted which considered the case of the petitioner in the meeting held on 26th February 1976. The Committee noticed that he was censured for over withdrawal of T.A. Bill and was also asked to return half day's D.A. in Govt. treasury. In another case it was alleged that the petitioner has submitted two false travelling bills and regular departmental enquiry was contemplated. It is further stated by the deponent in the said affidavit that following departmental proceedings were in progress against the petitioner :
(1) ACB was conducting an enquiry regarding the allegations that the staff members of the office of the Spl. L.A.O., Mahi Canal, Nadiad, Dist Kheda, have drawn false T.A. as Shri J. M. Mehta was one of the staff members, his involvment in the matter cannot be ruled out.
(2) In another case, Shri J. M. Mehta was alleged to have misappropriated the Bhadran Nagar Panchayat funds.
The State Government had preferred to file another affidavit-in-reply and one Jitendra S. Dave, Under-Secy. to the Government of Gujarat, Revenue Department, has in the said affidavit-in-reply clearly stated as to what was the foundation for making the order of premature retirement. It would be essential to quote the say of the respondents in their own words :
"I say that in the present case preliminary enquiry was held for certain charges against the petitioner and the Anti-Corruption Bureau upon investigation had substantiated the following charges :
1. That he claimed false transfer T.A. of Rs. 167.45 ps. during his transfer from Thasra to Nadiad as he did not actually shift his household kit to Nadiad and continued to move between Thasara and Nadiad.
2. That he unauthorisedly collected moneys from the office staff for running a kitchen for the Inspection Party during their inspection visit of the office of Special Land Acquisition Officer, Nadiad and thus the amount of Rs. 100/- given by a person of the inspection party towards their boarding was pocketed by the petitioner.
3. That he claimed false T.A. and D.A. of Rs. 110.60 ps. for August 6, 1970, August 14, 1970, August 18, 1970, August 19, 1970, August 20, 1970, August 26, 1970, August 27, 1970 and August 31, 1970 showing false journey to Tarapur, Cambay and Petland."
It is, thus, clear that some departmental enquiries were pending against the petitioner and in another case departmental enquiry was contemplated. It is also clear that preliminary fact finding enquiry was conducted and the Anti-Corruption Bureau upon investigation has sustantiated three specific charges against the petitioner and based on the said charges the Review Committee has taken decision to retire the petitioner prematurely since his integrity was reported to be doubtful.
15. At this stage, I must mention that I called upon the Government to produce for my inspection the relevant files, case papers and records based on which the decision to retire the petitioner prematurely was taken. Miss Rekha Doshit, learned AGP for respondent State, willingly produced the aforesaid record for my scrutiny. On going through the record, it appears that a preliminary fact finding enquiry was ordered against the petitioner and one T. M. Parmar, PSI in the Anti-Corruption Bureau has reported to Director of Anti-Corruption Bureau by his report, dt. April 1, 1973 and it appears that the enquiry was made into as many as 12 allegations. The said report was submitted by PSI, Shri Parmar, to the Director, Anti-Corruption Bureau and the Director, ACB sent the said report to the Vigilance Commissioner on 12th March 1975. The Vigilance Commissioner by his letter dated November 14, 1975, sent his recommendation to the Revenue Department and recommended that a regular enquiry should be held against the petitioner on four specific charges, three of which are verbatim referred by the State Govt. in its affidavit-in-reply as reproduced hereinabove. There is, therefore, no room for doubt that after the preliminary or fact finding enquiry, what was recommended was a regular departmental enquiry. In fact, out of 12 allegations made against the petitioner, atleast 3 are not substantiated, and with respect to four specific charges it has been recommended that the department should proceed against the petitioner holding regular enquiry.
16. The respondents having come with this positive case now want to urge that the action of premature retirement was justified since the integrity of the petitioner was doubtful and that there was sufficient material before them for reaching said conclusion
17. At this stage, it would be necessary to refer to the recent decision of the Supreme Court in the case of Ram Ekbal Sharma v. State of Bihar & Anr. reported in (1990-11-LLJ-601). In the case before the Supreme Court the petitioner was appointed on 9th December 1957 to the post of Industrial Expansion Officer and gradually came to be promoted to a gazetted post because of his excellent service career. He was promoted to the post of Industrial Economist as back as on 24th September 1983 and was thereafter promoted to the next higher post of Joint Director, and subsequently to the post of General Manager. By order dated 26th October 1988 he was prematurely retired under Rule 74(b)(ii) of the Bihar Service Code the said order was challenged by the petitioner on the ground that in fact the order has been made as a measure of punishment. The High Court dismissed the petition, but the Supreme Court entertained the Special Leave Petition. After reproducing the provisions of the Bihar Service Code the court found that the competent authority has been conferred with the power to retire the Government servant from service in public interest after giving three months' prior notice in writing or amount equivalent to three months' pay and allowance in lieu of such notice on the date on which such Government servant completes thirty years of qualifying service or attains fifty years of age or any date thereafter to be specified in the notice. After considering earlier decisions of the court, a Two - Judge bench of the Supreme Court made following pertinent observations (p. 608) :
"On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the Government servant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the Government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere form of the order in such cases cannot deter the court from delving into the basis of the order if the order in question is challenged by the concerned Govt. servant as has been held by this court in Anoop Jaiswal's case. This being the position the respondent-State cannot define the order of compulsory retirement of the appellant in the instant case on the mere plea that the order has been made in accordance with the provisions of R.74(b)(ii) of the Bihar Service Code which prima facie does not make any imputation or does not cast and stigma on the service career of the appellant. But in view of the clear and specific averments made by the respondent-State that the impugned order has been made to compulsorily retire the appellant from service under the aforesaid Rule as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the impugned order cannot but be said to have been made by way of punishment. As such, such an order is in contravention of Ast. 311 of the Constitution of India as well as it is arbitrary as it violates principles of natural justice and the same has not been made bona fide."
18. The Division Bench of this court in Special Civil Application No. 28/90 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 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 short-cut to a regular departmental enquiry under Article 311 of the Constitution of India.
19. Based on above decisions, Mr. M. R. Anand for the petitioner sumits that the facts of the present case are closely parallel to the facts of the case before the Supreme Court as well as the facts of the case before the Division Bench of this Court. He, therefore, invites the court to lift the veil and to find out as to whether the order of premature retirement is in fact a bona fide exercise of powers under Rule 161 of the Bombay Civil Service Rules or it is a camouflage for an order of dismissal/removal from service. On going through the affidavit-in-reply by Shri C. 20 R. Desai, Under-Secretary to the Govt. of Gujarat, I find that the Government decided to retire the petitioner prematurely in view of cases of departmental enquiry/departmental action pending against him. In the subsequent affidavit-in-reply filed by Jitendra S. Dave, Under-Secy. to the Govt. of Gujarat, Revenue Department, what was implicit is made explicit by clearly stating that a prelimenary enquiry held against the petitioner by A.C.B. substantiated three charges referred to hereinabove. ACB also satisfied that the Vigilance Commissioner has, in his letter addressed to the Chief of the Revenue Dept., recommended that the petitioner should be proceeded departmentally by holding regular departmental enquiry with respect to the four charges. In fact, therefore, as per the record and the case file of the petitioner as it stood on the date of impugned order, it was clear that there was recommendation to hold departmental enquiry against him with respect to four charges. Based on the said recommendation the Review Committee appears to have decided to prematurely retire the petitioner on his reaching the age of 50 years. I have, therefore, no doubt in my mind that the impugned order of premature retirement is a camouflage for an order of dismissal/removal. In fact, this order is passed as a substitute to holding departmental enquiry against the petitioner with respect to four charges as recommended by the Vigilance Commissioner. The State Government has, thereby, avoided to hold regular departmental enquiry and to follow the procedure prescribed under Article 311(2) of the Constitution of India, and has put an end to the services of the petitioner by resorting to powers under Rule 161 of the Bombay Civil Service Rules. Based on the decision of the Supreme Court in the case of Ram Ekbal Sharma v. State of Bihar & Anr. (supra) and also the decision of the Division Bench of this court in Spl. C.A. No. 28/90, I am of the opinion that the impugned order of premature retirement of the petitioner is penal in nature/character and is a subterfuge for an order of dismissal/removal. Instead of holding departmental enquiry against the petitioner as recommended by the Vigilance Commissioner in his report the State Govt. has proceeded to exercise powers under Rule 161 of the Bombay Civil Services Rules, and has prematurely retired the petitioner for specific misconduct for which departmental enquiry was recommended by the Vigilance Commissioner. I, therefore, hold that the order of premature retirement at Annexure "C" to the petition, dated 23rd September 1976 retiring the petitioner prematurely with effect from 31st December, is in pith and substance camouflage for an order of dismissa/removal and the same is therefore required to be quashed and set aside as being arbitrary, illegal, invalid and inoperative.
20. At this stage, I shall have to mention the submission made by Miss. Rekha Doshit, learned AGP for respondent-State in support of order of premature retirement. She submits that the order of premature retirement is passed against the petitioner since his intergrity was doubtful and not because of his poor performance in service or on the ground that he was not suitable for the post. She submits that there are various pre-promotional instances which have gone undetected or unnoticed, though minor or stray they may be taken individually, and if taken collectively, they are of grave nature and they clearly establish that the petitioner was a man of doubtful integrity. In this connection she places reliance upon the decision of the Supreme Court in the case of Union of India v. Mr. M. E. Reddy reported in (1980-1-LLJ-7). Relying on the observations made in para 20 in the said decision, she submits that the officer as a man of doubtful integrity stands on a separate footing and if that officer is prematurely retired on that ground, it neither involves any stigma nor is there any error in the order. I fully agree with the ratio decidendi of the case before the Supreme Court, but I am of the opinion that in the present case material, documents and the reports before the Government wholly justify taking of departmental action against the petitioner after initiating departmental proceedings on four specific charges. The order of premature retirement cannot be used as a short-cut to by-pass regular departmental enquiry under Article 311(2) of the Constitution of India. In fact, the very object of drastic powers given by Rule 161 of the Bombay Civil Service Rules to retire a Govt. servant prematurely in exceptional cases and circumstances would be frustrated, if the Government is permitted to resort to said powers by openly stating that it is exercising said powers despite the fact that what is recommended against the employee is holding of departmental enquiry. I, therefore, hold that the impugned order of premature retirement passed against the petitioner is, in fact, penal in character inasmuch as it is used as short cut to a departmental enquiry to be held against the petitioner as recommended by the Vigilence Commissioner in his report. Since the respondents have not followed the procedure prescribed under Art. 311(2) of the Constitution of India, and since no regular departmental enquiry is held, the respondents cannot be permitted to have resort to Rule 161 of the Bombay Civil Services Rules. The impugned order of premature retirement is, therefore, required to be quashed and proper directions are required to be issued to the respondents as regards the reinstatement of the petitioner in service and back wages.
21. In the present case, the petitioner was sought to be retired by the impugned order on his reaching the age of 50 years in 1976. Petitioner must have, therefore, reached the superannuation age in 1984. I am informed by the learned Counsel for the petitioner that he has reached the superannuation age on 29th February 1984 and the question of actually reinstating the petitioner in service, therefore, does not rise. However, on order of his premature retirement being set aside, the petitioner shall be entitled to declaration of his continuance in service till the date of his superannuation. In view of the fact that he has already reached superannuation age, it is not permissible to direct his reinstatement in service. The next and more important question is that of entitlement of the petitioner to back wages from the date of his premature retirement i.e., December 31, 1976 till the date of his superannuation, i.e., on February 29, 1984.
22. So far as the question of back wages is concerned, it shall have to be kept in mind that the impugned order of premature retirement was passed on September 23, 1976 retiring the petitioner with effect from December 31, 1976 prematurely. The petitioner did challenge that 20 order by filing earlier Special Civil Application, but he withdrew the said Special Civil Application unconditionally. In view of the fact that subsequently the Government suo motu had undertaken the review of all cases of premature retirement, but the case of the petitioner was not reviewed and it was decided not to cancel the order of premature retirement in the case of the petitioner. Thereafter, the petitioner has filed the present petition on October 15, 1979. The petition was circulated for admissional hearing on 29th November 1979 and the notice was ordered to be issued on the respondents returnable on 13th December 1979. The order of premature retirement, dated September 23, 1976 is, thus, factually challenged by the present petition filed in the month of October, 1979. There is, therefore, delay in challenging the order of premature retirement. As pointed out hereinabove, in fact in the original petition there was no challenge about the subsequent rejection of representation of the petitioner and such challenge came to be introduced only at the time of hearing of this petition. In view of the above facts, the question of grant of back wages to the petitioner is required to be considered. Miss Rekha Doshit, learned AGP for respondents, has relied upon the decision of this court in the case of Kiritkumar D. Vyas v. State wherein the Division Bench of this Court (Coram. M. P Thakar, CJ & D. C. Gheewala, J.) has held that ordinarily the court will frown upon delay and laches on the part of aggrieved person if any right of innocent persons intervened. However, in cases where the rights of other innocent persons are not likely to be affected the court should take broad view and condone delay on condition that he petitioner shall not be paid the benefits accruing to him for the period for which he has not come to the court. In the present case, since the petition was filed in the month of October 1979 and was circulated only in the month of November 1979, it could be said that the petitioner did not challenge the impugned order of premature retirement till then and therefore he is not entitled to back wages for the period of delay. It would therefore, be just and proper in the present case not to grant back wages to the petitioner from the date of impugned retirement till the month of December 1979, i.e., the date 20 when the notice on respondents was returnable and the respondents appeared. I would, therefor, direct the respondents to pay back wages to the petitioner with effect from January 1, 1980 till the date of his superannuation. However, for the period from December 31, 1976 to December 31, 1979 no back wages shall be paid to the petitioner. The back wages starting from January 1, 1980 till the date of his superannuation would be paid to the petitioner. In view of the fact that actual retiral benefits of the petitioner shall have to be calculated on the basis of directions given hereinabove, and the difference shall have to be worked out, and in view of the fact only the back wages shall have to be paid for the period between January 1, 1980 till the date of his superannuation, some reasonable time shall have to be granted to the respondents. I, therefore, direct the respondents to carry out the directions given hereinabove by June 15, 1991 and to pay to the petitioner the actual backwages from January 1, 1980 till the date of his superannuation, and also to fix his pensionary benefits on the basis of his continuance in service till the date of his superannuation.
23. In the result, petition succeeds. Rule is made absolute to the aforesaid extent with no order as to costs.