Gujarat High Court
Narendrakumar V. Parikh vs State Of Gujarat on 18 January, 1999
Equivalent citations: (1999)2GLR1453
JUDGMENT M. R. Calla, J.
1. This Special Civil Application is directed against the order dated 19-6-1991, i.e., Annexure 'F' annexed with the petition, passed by the order of the Governor and issued under the signatures of the Secretary to the Government, Social Welfare Department, under clause (aa)(i)(1) of the Rule 161 (1) of the Bombay Civil Services Rules, 1959 whereby the petitioner was made to retire from the post of Social Welfare Officer (Training) at once in the interest of public service by payment of three months pay and allowances with the further mention that the inquiry pending against the petitioner shall continue under the relevant Rules of B.C.S.R. even after his retirement.
2. The petitioner was initially appointed on 5-2-1965 as Promotion Officer, Remand Home in the Social Welfare Department. According to the petitioner he was confirmed on this post later on. On 25-9-1965 the petitioner was made in-charge Probation Officer and according to the petitioner he was also confirmed on this post later on. The petitioner has averred that on 31-5-1970 he was transferred as Chief Probation Officer at Rajkot where he served upto 15-9-1972 and was then transferred to Surat on 20-4-1981 and, thereafter, he was posted as Child Marriage Prevention Officer, Palanpur as Class II Officer on 21-4-1981. While the petitioner was so working as a Class II Officer he was selected as a direct recruit by the G.P.S.C. for being appointed as Social Welfare Officer (Training) and the order appointing him as Social Welfare Officer (Training) on the basis of his selection by the G.P.S.C. was issued on 11-2-1982, which has been placed on record as Annexure 'A'. It is also the petitioner's case that under Recruitment Rules of 1983 the petitioner was eligible and qualified to be considered and promoted to Class I post, but he was not so promoted while his juniors were promoted as Class I and, therefore, the petitioner preferred a Special Civil Application No. 2831 of 1988 wherein the Rule was issued by this Court and on the very same day an order was also passed that further promotions to Class I Post will be subject to the result of that petition and that the Special Civil Application No. 2831 of 1988 is pending before this Court. While making reference to G.A.D. circular dated 30-3-1989 with regard to the recording, maintaining and communicating the Annual Confidential Reports the petitioner has stated that adverse remarks were conveyed to him for the years 1983-84, 1984-85, 1985-86 and 1986-87, which according to the petitioner were not required to be conveyed and should have been kept in a sealed cover because he had been appointed on probation as Social Welfare Officer (Training) and no order has been passed to continue the petitioner on long-term basis. Be that as it may, the fact remains that the adverse remarks for the aforesaid four years were conveyed to the petitioner and the petitioner preferred an Appeal against the adverse remarks of 1983-84 on 8-10-1984 and against the adverse remarks for the rest of the years, the petitioner states that he had preferred Appeal on 18-7-1988 and 23-7-1988. It is also the petitioner's case that he had submitted a representation on 6-6-1981 to decide his Appeals against the adverse remarks but despite the petitioner's representation his Appeals against the adverse remarks for the years 1983 to 1987 were not decided. The petitioner has also come with the case that in the year 1987 While fixing his pay he was fixed at lower scale and being aggrieved from that he had preferred a Civil Suit No. 368 of 1987 in the Court of Civil Judge (S.D.), Nadiad, wherein an injunction was granted protecting hill salary. It is the petitioner's case that, Civil Suit is still pending and the injunction is operating. It may also be pointed out that in the impugned order also whereby the petitioner has been given compulsory retirement, a reference has been made in Para 4 about the pendency of this Civil Suit and it has been mentioned that the matter with regard to the increment shall be decided as per the final decision in that Civil Suit. The petitioner has also stated that vide Memorandum dated 29-3-1988 the petitioner was subjected to a Departmental Inquiry on the charges enclosed with this Memorandum; he had filed the reply to this charge-sheet on 12-4-1988, no further proceeding were held in this inquiry after the filing of this reply. On 5-12-1990 he had filed a complaint against his superiors before the Vigilance Commission and, thereafter, during the pendency of the Departmental Inquiry, as aforesaid, the petitioner was subjected to compulsory retirement vide impugned order dated 19-6-1991 and aggrieved from this order of compulsory retirement dated 19-6-1991 the present petition has been preferred.
3. At this stage, Mr. R. J. Oza has appeared on behalf of the respondent-State of Gujarat and has submitted that he is not appearing in this case now. He has also submitted that so far no reply has been filed although the matter is pending since 1991. He submits that a day's time may be given for production of the relevant record, which will be produced tomorrow. The further dictation of this order was, therefore, deferred to 19-1-1999.
On 19-1-1999, on the request of Mr. Oza dictation of the order was further deferred to 22-1-1999.
4. Whereas no reply has been filed by the respondent, on 22-1-1999, i.e., today, Mr. Oza has made submissions on the basis of the record made available to him and as per the instructions of Mr. B. R. Thakore, Under Secretary to the Government, Social Justice and Empowerment Department. A chart relating to the Annual Confidential Reports of the petitioner for the period from 1-4-1982 to 31-3-1991 running into 5 sheets has been produced to show the remarks recorded in the ACRs as also the available details with regard to the dates of communication of ACRs and the dates on which the representations were decided. It was also pointed out by Mr. Oza that as per the guidelines, the Committee to consider the case for compulsory retirement had met on 31-5-1989 and in the meeting of this Committee the petitioner's case was taken up for consideration for the purpose of compulsory retirement. It has been submitted that the ACRs for the period 1982-83 to 1988-89 were considered. It has also been submitted that the Committee also took into consideration the items of allegations that the petitioner had no authority under law to sanction his own increments and yet he had sanctioned his own increments and had also taken the loan of Rs. 20,000/- against House Building in relation to a house, which was in the name of his wife, and the petitioner had purchased this house from his wife so as to take the loan, which was not permissible. It was also submitted that the Committee also took into consideration the allegations, which were subject matter of anti-corruption inquiry against the petitioner with regard to the disbursement subsidy amount to Vans (Bamboo) Kamoar Sahakari Mandli. He has candidly stated that in this anti-corruption inquiry ultimately nothing was found against the petitioner. It has also been admitted that the allegation regarding the sanction of his own increments by the petitioner and the allegation with regard to the taking of a loan of Rs. 20,000/- for House Building etc., forming the subject-matter of the charge-sheet dated 29-3-1988 were also considered by the Committee against the petitioner. It has been further submitted that no inquiry proceedings whatsoever were held after the petitioner's reply dated 12-4-1988 and the said inquiry, which was pending at the time of the issue of the order of compulsory retirement in 1991, is yet pending and it has been sought to be explained that the further inquiry proceedings were not taken by the Department on the mistaken belief that there was some interim order against the holding of the inquiry by the Civil Judge (S.D.), Nadiad in Civil Suit No. 368 of 1987 whereas in fact there was no such stay or injunction against the holding of the inquiry against the petitioner. It has also been submitted that sometime in 1996, the said Civil Suit was dismissed in default and the intimation of this dismissal in default of the suit was received by the Department in July 1998 and, thereafter, on 6-1-1999 the record was called for from the Office of the Director for taking further action in the inquiry.
5. Mr. Manoj Popat, appearing for the petitioner, has submitted that even if the chart of the ACRSs, as has been produced by the Respondent, is taken into consideration, it will be found that there are adverse remarks against the petitioner for the period from 1-4-1982 to 31-3-1983 and 1-4-1983 to 31-3-1984, which have been maintained but for the period thereafter, i.e., from 15-10-1984 to 11-7-1986 no decision has been taken on his representations dated 22-7-1988 and 23-7-1988. While the only remark for the period 15-10-1984 to 31-3-1985 and 1-4-1985 to 17-9-1985 is that the Departmental Inquiry was pending. He had also pointed out from the very same chart that for the period from 12-7-1986 to 31-3-1987 there were favourable remarks that his work was good and commendable, although on this aspect of the matter it has been pointed out by Mr. Oza on behalf of the respondent that the remarks of his work being good and commendable were given by an Officer of equal rank, who was only holding additional charge, but the fact is that the Reviewing Officer also did not record any disagreement with these favourable remarks recorded in favour of the petitioner by the concerned Reporting Officer. For the period from 1-4-1987 to 31-3-1988 it has been pointed out by Mr. Manoj Popat on behalf of the petitioner that the Reporting Officer had agreed with the self-assessment given by the petitioner and the only remark was that petitioner was to be watched. It has also been pointed out that this remark for the period 1-4-1987 to 31-3-1988 that petitioner was to be watched was not conveyed to the petitioner. For the period from 28-4-1988 to 31-3-1989 also, while the petitioner has been assessed to be an average Officer, the adverse remarks recorded against him were not conveyed. It has also been pointed out that even for the period from 1-4-1989 to 31-3-1990 and 1-4-1990 to 31-1-1991 the Reporting Officer had not given adverse remarks and no adverse remarks were conveyed to the petitioner and all that has been recorded for this period is that the petitioner had been prematurely retired by an order dated 19-6-1991. Mr. Manoj Popat has pointed out that the only serious remarks for the period from 1-4-1982 to 31-3-1983 was that of suspected motive and for the period from 1-4-1983 to 31-3-1984, though a mention has been made about the complaints against him with regard to his work, conduct, impartiality and integrity, those complaints had not been subjected to inquiry and even if they were subjected to inquiry, nothing has been found against the petitioner and the petitioner's integrity was never found to be questionable and in any case after 1984 not even a little finger has been raised against his integrity at any point of time in any of the ACRs and, therefore, it was not at all a case in which the petitioner could be subjected to compulsory retirement under clause (aa)(i)(1) of Rule 161(1) of the Bombay Civil Services Rules, 1959 and the petitioner's compulsory retirement was not at all warranted on the ground of public interest.
6. The learned Counsel for the petitioner has submitted that in any case :-
(a) the uncommunicated adverse remarks could not be taken into consideration against the petitioner,
(b) the adverse remarks could not be said to have been recorded in accordance with the guidelines issued for the purpose and that the communication of the adverse remarks to the petitioner was itself violative of the Government Resolution dated 30-3-1989,
(c) that in the facts and circumstances of this case, it is clear that the impugned order of compulsory retirement dated 19-6-1991 passed against the petitioner was a punitive order passed during the pendency of the Department Inquiry; it is a camouflage over the allegations of misconduct, which formed the subject-matter of inquiry and these allegations, which formed the subject-matter of inquiry, have in fact been considered by the Committee which met on 31-5-1989 and that even otherwise the mention of the factum of the pendency of inquiry in Para 3 of the impugned order by itself makes this order to be per se stigmatic,
(d) that the impugned order lacks bona fides and the same had been passed on 19-6-1991 because the petitioner had made a complaint against his superior on 5-12-1990 and accordingly the order is mala fide,
(e) that the petitioner's reply dated 12-4-1988 to the charge-sheet, as has been annexed with the Special Civil Application as Annexure 'E', would show that the charges were wholly misconceived against the petitioner, the charges were factually incorrect and the same had been framed without application of mind.
7. As against it, Mr. Oza on behalf of the respondent, has submitted that there was nothing wrong with regard to the communication of the adverse remarks to the petitioner and there is no violation of the Government Resolution dated 30-3-1989; even uncommunicated adverse remarks could be taken into consideration for the purpose of compulsory retirement in accordance with law, there was no legal impediment to take a decision to compulsorily retire the petitioner under Rule 161 of the B.C.S.R. even during the pendency of the inquiry and the mere mention of the fact in the body of the impugned order that the inquiry pending against him shall continue cannot make the order to be stigmatic, the order cannot be said to be penal in as much as it does not seek to deny any of the earned benefits to the petitioner and there was no question of the decision to retire the petitioner compulsorily to be mala fide on the ground that the petitioner had filed a complaint on 5-12-1990 against his superiors since the decision to give compulsory retirement to the petitioner had been taken in May 1989 based on the record prior to May 1989 only and the petitioner's so-called complaint dated 5-12-1990 is subsequent to the decision taken by the Committee in May 1989 to give retirement to the petitioner and it is on the basis of the recommendations of this Committee that the impugned order was passed by the Government.
8. I have considered the submissions made on behalf of both the sides as also the decisions, which have been cited on behalf of both the sides.
9. So far as the grievance regarding the communication of adverse remarks during the period of probation that the same should have been kept in sealed cover and that by communicating the same the Government Resolution dated 30-3-1989 had been violated is concerned, I find that if any adverse remarks is recorded and the same is conveyed to an employee, it does not prejudice the employee in any manner whatsoever. On the contrary, if the same are kept in sealed cover and the employee is not made known of those remarks, an employee may have a grievance that the same were not conveyed though they were adverse. In this view of the matter, the grievance with regard to the violation of the Government Resolution dated 30-3-1989 is wholly misconceived and is illusory and on that ground it cannot be said that these adverse remarks should not have been conveyed to the petitioner and even if conveyed that they could not be taken into consideration by the Committee on the strength of the Government Resolution dated 30-3-1989. It does not lead to any infirmity in the consideration of the petitioner's case for compulsory retirement and, therefore, this ground raised on behalf of the petitioner has no substance and the same is hereby rejected.
10. The grievance raised by the petitioner that uncommunicated adverse remarks could not be taken into consideration may not detain this Court any more in view of the law laid down by the Supreme Court in the decision reported in AIR 1994 SC 1261 (Union of India v. V. P. Seth), a decision which had been rendered by a Bench of three Judges of the Supreme Court. In para 2 of the judgment, the Supreme Court after taking note of the earlier decision reported in 1992 I CLR 610 SC (Baikuntha Nath Das v. Chief District Medical Officer, Baripada) and in 1992 I CLR 815 SC (Posts and Telegraphs Board v. C. S. N. Murthy), has held that uncommunicated remarks can certainly be considered for the exercise of powers of compulsory retirement. While quoting the principles in para 2 at item (v) it has been quoted as under :-
"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".
In view of this decision and the law laid down by the Supreme Court in no uncertain terms, I do not find it necessary to deal with the decision of this Court which have been cited on behalf of the petitioner because it is the aforesaid principle laid down by the Supreme Court which holds the field and the contrary view taken in any decision by any High Court whether prior to this decision or thereafter cannot be acted upon.
11. The impugned order of compulsory retirement on facts cannot be held to be mala fide merely because the petitioner had filed a complaint on 5-12-1990 and in the facts of this case, I find much force in the argument of Mr. Oza that the Committee had already recommended the petitioner's compulsory retirement way back in May 1998 and merely because the order was issued in June 1991 it cannot be said that the order of compulsory retirement was an outcome of petitioner's complaint, which was filed in December 1990.
12. Now, the question comes as to what would be the effect of the pendency of the Departmental Inquiry at the time when the order of compulsory retirement was passed and of the fact that in the body of the impugned order itself it was mentioned that the pending inquiry shall continue against the petitioner. Whether the impugned order of compulsory retirement is rendered to be punitive and stigmatic on these two grounds is the moot question for the consideration of the validity of the present impugned order dated 19-6-1991. So far as the factual position is concerned, it may be reiterated that the charge-sheet was issued on 29-3-1988, the petitioner filed the reply to the charge-sheet on 12-4-1988, no proceedings were held further and initially while the inquiry was pending, the Committee, which met in May 1989 and considered the question of petitioner's compulsory retirement, did take into consideration the charges, which were the subject-matter of inquiry and it is also not known whether this Committee also took into consideration the reply to the charge-sheet filed by the petitioner or not. It is also not in dispute that even uptil now no further inquiry proceedings have been held and the explanation, which has been given for not holding the inquiry, is far from convincing. It is a poor apology to say that he inquiry was not held under the misconception and mistaken belief that there was an injunction order against the inquiry by the Civil Court, whereas in fact there was no such injunction. It is also not in dispute that the civil suit had been filed in the year 1987, i.e., prior to the service of the charge-sheet dated 29-3-1998 and the inquiry as such was never under challenge in the Civil Suit itself. In the Civil Suit the petitioner had only raised a grievance against the fixation of his pay in the lower scale and merely because the dispute relating to increment or fixation in lower pay-scale was sub judice before the Civil Court, the inquiry could not be put in oblivion. It is, therefore, clear that the inquiry proceedings were subject-matter of the inquiry, were made use of by the Committee, which considered the petitioner's case for compulsory retirement and it cannot be said that these charges did not weigh with the Committee in arriving at the recommendations for his compulsory retirement. Mr. Manoj Popat has placed reliance on an unreported Division Bench decision of this Court rendered in Special Application No. 28 of 1990 in October 1990, which is also referred and relied upon in the case of J. M. Mehta v. State of Gujarat, 1991 II CLR 248 = (1991 (1) GLR 619) I find that both these decisions are based on the Supreme Court decision in the case of Ram Ekbal Sharma v. State of Bihar & Anr. reported in AIR 1990 SC 1368. In Ram Ekbal Sharma's case (supra) the Supreme Court took notice of the subsequent averments made by the State that the impugned order had been made to compulsorily retire the appellant from service under the relevant Rules as he was found to have committed grave financial irregularities leading to financial loss to the State and the impugned order cannot but be said to have been made by way of punishment and, therefore, the order was illegal and unwarranted and liable to be quashed. In the facts of the present case also, it is very clear that not only that the inquiry was pending, the Committee, while considering the case of compulsory retirement in May 1989, in fact has taken into consideration the charges, which formed the subject-matter of inquiry and which were yet to be inquired upon. Thus, the unproved charges have been taken into consideration for the purpose of taking the action of compulsory retirement. Further, it is also a factually admitted position that the factum of the pendency of the A.C.D. inquiry was also considered by the Committee and in fact subsequent to the petitioner's retirement nothing has been found against the petitioner in this ACD inquiry. True, it is that in normal course an order of compulsory retirement is neither punitive nor it cannot be said that it entails any penal consequences as such because the order of compulsory retirement on the ground of public interest does not deprive an employee any of his earned benefit, but the law is equally settled that in the facts of a given case if it is made to appear before the Court that the order of compulsory retirement is only a cover and in fact the order is founded on misconduct and that it has been passed only by short-circuiting the procedure of inquiry or it is otherwise made to appear before the Court on the basis of the circumstances attendant and preceding to the passing of the order of compulsory retirement that in fact the allegations of misconduct formed the heart and soul of the compulsory retirement, the form of the order is not conclusive and we have to go to the substance rather than the form and the Court has a right to unveil, remove the cover to examine the real nature of the order and for that purpose the Court can go behind the order also so as to determine the true nature of this order. In Ram Ekbal Sharma's case (supra) in para 28 it has been found after considering several decisions by the Supreme Court that the legal position which emerges is that even if an 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 bone 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 Government servant and in arriving at this decision, reference has also been made to AIR 1984 SC 636 (Anoop Jaiswal v. Govt. of India), which was essentially a case of probationer and in that case also it was laid down that the law was now settled that, where the form of the order is merely a camouflage for an order of dismissal for misconduct, it is always open to the Court before which the order is challenged, to go behind the form and ascertain the true character of the order. To combat this argument raised on behalf of the petitioner, Mr. Oza has placed strong reliance on the Supreme Court decision reported in 1995 I CLR 398 SC (State of U.P. v. Abhai Kishore Masta) in which the Supreme Court has held in no uncertain terms that merely because the order of compulsory retirement is passed during the pendency of departmental inquiry, it should not necessarily moan that it is an order penal in nature or that it should be deemed to be an order penal in nature. In this case of State of U.P. v. Abhai Kishore Masta (supra) the order of compulsory retirement was passed during the pendency of the departmental inquiry and later on the petitioner had been subjected to the punishment of reduction in rank. It was not made clear on the basis of the record or material that the compulsory retirement order was based on allegations of misconduct and the Supreme Court took the view that the mere pendency of the inquiry at the time of the order of compulsory retirement is not conclusive to say that the order of compulsory retirement is punitive and, therefore, while upholding the order of punishment of reduction in rank imposed in the departmental inquiry, the Supreme Court remitted the matter back to the High Court to determine as to whether the order of compulsory retirement was penal in nature or not. This case may have been of help to the respondent, had the Committee, which considered the question of compulsory retirement of the petitioner, did not take into account the allegations and charges which were subject-matter of inquiry or it would not have adverted itself to the allegations, which were the subject-matter of pending A.C.D. inquiry. Therefore, in the facts of the present case, it is not simply a case in which the order of compulsory retirement has been passed during the pendency of the inquiry and, therefore it should be set aside, but it goes a step further because it is found and verified as a matter of fact on the basis of the position held out on behalf of the respondent itself that the charges and allegations, which were the subject-matter of inquiry, were taken into consideration by the Committee, which considered the petitioner's case for compulsory retirement on 31-5-1989 and it also took into consideration the allegations, which formed the subject-matter of A.C.D. inquiry, which was pending at that time and in which nothing was found against the petitioner subsequently. Therefore, the facts of this case go a step further beyond the mere factum of pendency of inquiry and it stands verified as a question of fact that this order of compulsory retirement is found on allegations of misconduct and, therefore, it is certainly an order punitive in nature and the same cannot be sustained in the eye of law. Besides this, the fact also cannot be lost sight of that in the order of compulsory retirement the respondent had stated categorically in para 3 that the pending inquiry shall continue. It would have been a different matter altogether had the Government passed an order dropping the departmental inquiry before passing the order of compulsory retirement. Instead of dropping the inquiry it has been categorically stated in the body of the order itself that the inquiry shall continue. When we say that an order of compulsory retirement is not a penalty, it is presumed that the order is couched in innocuous terms and it does not cast any aspersion or stigma against the person because the presumption is that the relevant consideration is public interest and even if a compulsorily retired person goes for any alternative employment, the order per se does not convey anything against that employee to the employer before him he seeks any employment. But in cases, where it is mentioned in the body of the order itself that some inquiry was pending against the employee at the time of compulsory retirement, it would certainly convey to any one, who reads that order that the person was facing the charges of misconduct and, therefore, it may come in his way even for the purpose of seeking fresh employment and in that way it certainly casts aspersion or stigma against him. Taking into consideration the facts and circumstances of this case in its entirety, this Court has no hesitation in holding that the impugned order dated 19-6-1991 is a punitive order, it seeks to cast aspersion or stigma against the petitioner, the order is founded on allegations of misconduct and it cannot be said that this order is based on a plain and simple appraisal of his ACRs only. In such circumstances, this Court finds that the impugned order cannot be sustained in the eye of law. The order dated 19-6-1991 Annexure 'F' annexed with the Special Civil Application, issued by the order of the Governor of Gujarat under the signatures of the Secretary to the Government, Social Welfare Department, is hereby quashed and set aside and whereas it has been given out that the petitioner has already attained the normal age of superannuation it is directed that the petitioner shall be entitled to all consequential benefits till the date of his retirement on attaining the age of superannuation and the retrial benefits as if the impugned order dated 19-6-1991 had never been passed against him. This Special Civil Application is allowed and the Rule is made absolute accordingly. No order as to costs.
13. Petition allowed.