Gujarat High Court
Devendra vs State on 15 April, 2010
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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SCA/13333/1994 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13333 of 1994
With
SPECIAL
CIVIL APPLICATION No. 4817 of 1996
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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DEVENDRA
B RAVAL - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
MR
PJ YAGNIK for
Petitioner(s) : 1,
MRS. K.C. CALLA AGP for Respondent(s) : 1 -
3.
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 15/04/2010
ORAL
JUDGMENT
As both these petitions involve common questions on law and facts, they are disposed of by this common judgment and order.
1. By way of these petitions under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the order passed by the respondent-District Collector, Surendranagar dated 14.07.1994 as also the order dated 25.01.1996 by which the petitioner was compulsorily retired from service.
2. The facts in brief are that the petitioner was appointed as a Clerk in the office of respondent no.2 on 14.12.1959 and on having passed the necessary examination, he was promoted to the post of Deputy Mamlatdar on 17.05.1979. In May 1990, the petitioner was given the higher pay-scale of Mamlatdar but, on account of non-availability of post, he was not promoted to the said post. On 18.11.1992 the petitioner was given another higher pay-scale and thereafter, in the year 1993, he was given the benefit of the next higher scale looking to his long length of service.
3. Some where in June 1993, the petitioner was served with a notice issued by the respondent-authority as to why the higher pay-scale of Deputy Mamlatdar given to him be not cancelled on the ground that on earlier two different occasions, he had been censured and the remarks thereof had not been entered in his service records. The petitioner gave his reply to the same. However, vide impugned order dated 14.07.1994, the benefit of the higher pay-scale given to the petitioner was cancelled by respondent no.2. Being aggrieved by the said order, the petitioner has preferred the present petition being S.C.A. No. 13333/1994.
4. During the pendency of the said petition, charge-sheet dated 24.01.1996 came to be issued to the petitioner on the ground that the petitioner had not reported for duty at the transferred place. On the same day, another charge-sheet was also issued to the petitioner as to why necessary action as prescribed under the Gujarat Civil Services (Conduct) Rules, 1971 be not taken against him. Thereafter, vide impugned order dated 25.01.1996, the petitioner was compulsorily retired from service. Being aggrieved by the said order, the petitioner has preferred the present petition being S.C.A. No. 4817/1996.
In SPECIAL CIVIL APPLICATION No.13333 of 1994
5. The petitioner was served with the show-cause Notice dated 23.06.1993 to show cause as to why the higher pay-scale of Deputy Mamlatdar given to him be not cancelled. Due opportunity was given to the petitioner to present his case. However, it appears that the petitioner had not attended the hearing for reasons best known to him. Ultimately, on the ground that the petitioner had been censured on two different occasions in 1983 & 1984 and the said facts had not been entered in his Annual Confidential Reports inadvertently, though entries regarding the same were made in his Service Book, the respondent-authority came to the conclusion that the petitioner has been wrongly granted the benefit of the higher pay-scale.
6. The petitioner was granted the benefit of the higher pay-scale after considering his A.C.Rs. for the years 1983-1984, 1984-1985, 1985-1986, 1986-1987 and 1987-1988. However, inadvertently, the said adverse remarks had not been entered in the A.C.Rs. of the years 1983 1984 and therefore, the same could not be taken into consideration at the time of given the benefit of the higher pay-scale. The case of the petitioner for the grant of higher pay-scale was to be considered on the basis of his A.C.Rs. for the past ten years. However, since the A.C.Rs. of the petitioner for years 1983 1984 were not found to be satisfactory for the grant of the said benefit, the respondent-authority passed the impugned order cancelling the grant of higher pay-scale to the petitioner.
7. An endeavor has been made by the petitioner to point out that subsequently the penalty imposed on the petitioner and as referred to in the impugned order passed by the respondent-District Collector, has been set aside. However, no such order has been produced on record in support of the said say of the petitioner. Looking to the facts of the case and the relevant Government Resolutions issued by the State Government, I am of the opinion that the respondent-authority was completely justified in cancelling the benefit of higher pay-scale granted to the petitioner.
In SPECIAL CIVIL APPLICATION No.4817 of 1996
8. It is the case of the petitioner that the respondent-authority has issued a charge-sheet to him on 24.01.1996 for not joining the duty at the transferred place. Immediately, on the very same day, the respondent-authority issued another charge-sheet to the petitioner as to why appropriate action should not be taken against him under the Rules of 1971. Thereafter, on 25.01.1996, the impugned order directing compulsory retirement of the petitioner came to be passed.
9. It is submitted on behalf of the petitioner that the respondent-authority has passed the impugned order of compulsory retirement without resorting to the regular course of holding a departmental enquiry, without considering his past service records and also without considering the relevant provisions of law.
10.0 Reliance has been placed on a decision of the Apex Court in the case of S. Ramachandra Raju v. State of Orissa, J.T. 1994 (5) S.C. 459, wherein, it has been held that the entire service record, more particularly, the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a government officer.
10.1 Reliance has also been placed on another decision of the Apex Court in the case of State of Gujarat v. Umedbhai M. Patel, J.T. 2001 (3) S.C.
223. In that case, the employee was placed under suspension pending disciplinary proceedings. The State Government had sufficient time to complete the enquiry against him but, the enquiry was not completed even within a reasonable time. Even the Review Committee did not recommend the compulsory retirement of the respondent-employee. There was no adverse entry against him. On the facts of the case, the Apex Court held that the order of compulsory retirement was passed for extraneous reasons as the authorities did not wait for the conclusion of the enquiry and decided to dispense with the services of the employee merely on the basis of the allegations which had not been proved.
11. It is the case of the respondent-authority that the impugned order of compulsory retirement has been passed in exercise of powers under Rule 161(1) of the Bombay Civil Services Rules,1959. Therefore, the impugned action is with due authority of law.
12. It is not in dispute that Rule 161(1) of the B.C.S.R., 1959 empowers the competent authority to pass an order of compulsory retirement on the ground of public interest in respect of a government employee who has completed 55 years of age. In the present case, the respondent-authority has exercised powers under the said Rule looking to the service record of the petitioner for the last ten years. As discussed in the foregoing paragraphs, the petitioner had been censured on two different occasions for committing two different misconducts for which adverse entries were also recorded in his Service Book. Apart from that the petitioner had also committed a misconduct by not joining duties at the transferred place. In the case of State of Gujarat v. Umedbhai M. Patel (supra) relied upon by the petitioner, no adverse entries were recorded against the employee therein. However, in the present case, two adverse entries of a serious nature were recorded against the petitioner. Therefore, the said decision will not be of any help to the petitioner. Considering the facts of the case, I am of the opinion that the respondent-authority has not committed any illegality in passing the impugned order of compulsory retirement.
13. For the foregoing reasons, both the petitions are dismissed. Rule is discharged in each of them. Interim relief, if any, stands vacated.
[K.S.JHAVERI, J.] Pravin/* Top