IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4209 of 1986 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- ISHWARBHAI MARGHABHAI PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR YN OZA for Petitioner M/S MG DOSHIT & CO for Respondent No. 1, 2 -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 25/08/2000 ORAL JUDGEMENT #. Shri Y.N. Oza, learned Sr. Advocate is appearing for the petitioner. Shri S.N.Shelat, learned Addl. A.G. is appearing for the respondents with Shri A.D.Oza, learned Government Pleader and Shri M.G.Doshit for M/s. M.G.Doshit & Co. #. Rule of law is the foundation of a democratic society. The Judiciary is the guardian of the rule of law. Hence the judiciary is not only the third pillar but the central pillar of the democratic State. In a democracy like ours, where there is written constitution which is above all individuals and institutions and where the power of judicial review is vested in the superior courts, the Judiciary has a special and additional duty to perform namely to oversee that all the individuals and institutions including executive and the legislature act within the frame work of not only the law but also the fundamental law of the land. This duty is apart from the function of adjudicating the disputes between the parties which is essential to peaceful and orderly development of the society. #. It is too late in the day now to stress absolute freedom of an employer to impose any condition which he likes on labour. It is always open to industrial adjudication to consider the conditions of employment of the labour to vary them if it is found necessary unless the employer can justify an extraordinary conditions. #. The doctrine of the absolute freedom of contract has, thus, to yield the higher claims for social justice and the right to dismiss an employee is also controlled subject to well recognised limits in order to carry out the security of the tenure to the employment. #. It is important to remember that just as the employer's right to exercise his option in terms of the contract has to be recognised so is the employee's right to expect security of tenure to be taken into account. #. The justice must be rebutted in confidence and the confidence destroyed when the right minded people go away thinking that the Judge was bias. #. To dunk an officer into the puddle of doubtful integrity, it is not enough that the doubt fringes on a mere hunch. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain the doubt regarding that possibility. Only then, there is justification to ram an officer with the label 'doubtful integrity'. #.In the present petition, the petitioner has challenged the order of compulsory retirement passed against the petitioner on various grounds mentioned in the memo of petition. The order of compulsory retirement has been passed by the Deputy Secretary to the Government of Gujarat in its Roads and Buildings Department in the name of the Governor of Gujarat dated 8th August, 1986 while exercising the powers conferred by clause (ia) of sub rule (1) of Rule 161 of the Bombay Civil Service Rules ("BCSRs" for short). The petitioner was ordered to retire from the Government service with effect from the date of this order delivered to him and as per rule 161 of the BCSRs, 3 months' notice pay was paid to the petitioner by demand draft bearing No. OL/AZ-356069 dated 7th August, 1986 of the State Bank of Baroda of Rs.12,432.00. Said order of compulsory retirement of the petitioner has been challenged in this petition under Articles 14 and 16 of the Constitution of India. #. This petition was admitted by issuing rule thereon on 30.3.1988 and at that time, interim relief was refused by this Court (Coram : A.P.Ravani,J.). ##. Initially, the petitioner had challenged the vires of rule 161(a) (c-i) of the BCSRs. In respect of the said challenge, learned advocate Mr. Oza has, in view of the decisions of this Court as well as of the Supreme Court, has not pressed the petitioner's contention about challenging the vires of Rule 1(a) (c-i) of rule 161 of the BCSRs before addressing the division bench on merits of the matter and, therefore, the matter was ordered to be placed before the learned Single Judge dealing with the service matters by order dated 26.8.1986. ##. In the present petition, the respondents have filed affidavit in reply by one Mr. J.D. Dave, Under Secretary, Roads and Buildings Department on 10th September,1986.As against that, affidavit in rejoinder has been filed by the petitioner on 17th September,1986. Thereafter, the respondents have filed further affidavit in reply by one Mr. V.C.Joshi, Under Secretary to the Government of Gujarat, R. & B. Department on 23rd December, 1998. Thereafter, Chief Secretary to the Government Shri L.N.S. Mukundan has filed affidavit on 27-10-1999 in pursuance to the order passed by this court on 11th October, 1999. Thereafter, again, affidavit in reply has been filed by the respondents by one Mr. Anil Bhatt, Under Secretary, R. & B. Department on 27th July, 2000 along with certain circulars issued by the Government in respect of pointing out different guidelines for the compulsory retirement of the government employee and also produced on record the order of compulsory retirement dated 8th August, 1986. The respondent has also produced the report of the High Power Committee dated 6.6.1986 which is numbered as REV-1085-43-E2. Chief Secretary to the Government of Gujarat set up committee consisting of the Secretary of the Roads and Buildings Department, Additional Chief Secretary of the Home Department and the Chief Secretary to the Government of Gujarat. Said Committee has recommended in the report that the petitioner should be retired on his attaining the age of 55 years on 21st June, 1986 after giving him three months' notice pay as required under the Rules. ##. The present petition has been decided by this Court (Coram : S.K.Keshote,J.) on 26th November, 1999 and in the said decision, the learned Single Judge of this Court dismissed the present petition and the rule has been discharged by this court. Said decision of this court (Coram:S.K.Keshote,J.) was reported in 2000 Lab. and I.C. 1769. Thereafter, said judgment and order passed by the learned Single Judge on 26th November, 1999 was challenged by the petitioner before the division bench of this court by filing letters patent appeal no. 1737 of 1999 in the present petition being special civil application no. 4209 of 1986. The division bench of this court (Coram:B.C.Patel and D.H.Vaghela,JJ.) by judgment and order dated 28th January, 2000 allowed the said appeal and directed the petitioner to produce on record annexure "A" which is filed on record of the civil application and the order passed by the learned Single Judge in the present petition dated 26th November, 1999 has been quashed and set aside and it was directed to the registry of this court to place this petition on board at the earliest for final hearing. ##. Thereafter, this petition was heard by this court finally on 28th July, 2000 and the judgment was reserved by this court. ##. In this petition, amendment was sought for which was allowed by this court and the same was carried out by the petitioner on 22nd December, 1986 as per the order passed by this court. By virtue of the said amendment, paragraph 1/1 to 1/5 have been added in the present petition. ##. Brief facts of the present petition are as under: The petitioner, at the relevant time, was working as Superintending Engineer in the Super Class-I post in Roads and Buildings Department of the State Government.He was appointed in they ear 1954 and he completed more than 32 years' service in the department. According to the petitioner, his service career is absolutely unblemish and clean and that there was not a single dark spot in his entire career. Initially, he was appointed on the post of overseer which is now equivalent to the post of Assistant Engineer and, thereafter, he was promoted from time to time in due course. He was promoted to the post of Deputy Engineer in December, 1957 and, thereafter, in the year 1971, he was promoted to the post of Executive Engineer and in the year 1983, he was promoted as a Superintending Engineer, the post in which at the relevant time, the petitioner was working. Said promotion was given to the petitioner in routine course as and when right of the petitioner for the promotion had arose. The petitioner has challenged the impugned order of compulsory retirement on the ground that the same is illegal, erroneous and mala fide. It is also challenged that the impugned order of compulsory retirement has been passed without application of mind and the same dehors the provisions of settled principles of law and several judicial pronouncements. It is also contended by the petitioner that the impugned order of compulsory retirement has been passed on extraneous considerations and is solely arbitrary in character and there was no justification or reason for the authorities to retire the petitioner compulsorily. There is also reference to the preliminary inquiry which was held against the petitioner in the year 1968 wherein, ultimately, after full-fledged inquiry, the petitioner was fully exonerated of the charges levelled against him with the finding that the petitioner was not at all at fault and in the year 1984, one chargesheet was issued against the petitioner for remaining negligent in performance of this duties and reply thereto was submitted by the petitioner in February, 1984 and the said matter was pending at the relevant time when the petition was filed by the petitioner. In para 6, the petitioner has made reference of some judicial pronouncement of the apex court. It is contended that the petitioner has been retired compulsorily on the ground of doubtful integrity and has contended that during 32 years' service, the Government has never thought of it and hence the same cannot now be permitted to justify the action on such a ground which is considered to be an oblique motive on the part of the respondents. According to the petitioner, there was no adverse remark in respect of his doubtful integrity and, therefore, the impugned order of compulsory retirement passed against the petitioner is arbitrary, unjust,improper, bad in law and unconstitutional. It is also submitted that the petitioner has got certificates for good discharge of his duties as Executive Engineer when he was working during the war period in 1971 in Kachchh area. Vires of rule 161 of the BCSRs has been challenged and the averments to that effect were made by the petitioner in para 10 but subsequently, that challenge has not been pressed by the petitioner as stated earlier and, therefore, it is not necessary to examine that question by this court. ##. In amendment carried out by the petitioner, the petitioner has contended that the committee was not constituted and his case was not referred to the said committee and even if the committee has been appointed, then, the constitution of such committee is not as per the Government rules and regulations and circular dated 7th May, 1980. It is contended that the opinion of the committee is formed on extraneous consideration and then recommended for compulsory retirement of the petitioner and according to the petitioner, as per the Government circular of the year 1976, eight to ten years' previous confidential reports are required to be considered by the committee and according to him, no adverse remarks in the last ten years is pertaining to his integrity and this most particular aspect was overlooked by the committee.It is also pointed out by the petitioner that the criteria for promotion from the post of Executive Engineer to the post of Superintending Engineer is the merit cum seniority and the petitioner had proved the merit and efficiency both and, thereafter, he was promoted to the post of Superintending Engineer in the year 1983 and, therefore, it is the contention of the petitioner that the incidents occurred prior to the promotion to the post of Superintending Engineer cannot now be considered by the committee because the petitioner was promoted regularly after considering the merits, efficiency and seniority of the petitioner. According to the petitioner, if the committee has considered the incidents prior to 1983, then, that decision is bad and dehors the principles laid down by the judicial pronouncements. It is also pointed out that at the time of passing the order in question, the departmental inquiry was pending against the petitioner and, therefore, it amounts to punishment. It also amounts to short cut which has been adopted by the respondents.The petitioner has also contended that rule 161(c)(ii)(1) of the BCSRs provides that; "Except as otherwise provided in this sub clause, Government servants in the Bombay Services of Engineers, Class I,must retire on reaching the age of 58 years and may be required by Government to retire on reaching the age of 50 years if they have not attained to the rank of Superintending Engineer. " ##. Referring to the above,rules, the contention has been raised by the petitioner that the respondents have no power to pass such an order against the petitioner because the petitioner was working permanently on the post of Superintending Engineer. ##. The respondents have filed the affidavit in reply and it has been pointed out by the respondents that under rule 161(a) of the Bombay Civil Services Rules read with the Government Guidelines issued from time to time regarding compulsory retirement, the committee set to review the cases of the officers of the rank of head of the department on 6.6.1986. After careful consideration, the committee on the basis of the over all record, particularly with regard to couple of inquiries which reflected doubtful integrity of the petitioner that there is negligence in his allowing poor workmanship of structural work of the Narmada Bhavan at Baroda.The respondents have also pointed out that the work of the petitioner was not found upto mark and on different occasions, his explanation was sought or some inquiry was initiated against him for his negligence in the work. In respect of the construction work of the Multistoreyed building namely Narmada Bhuvan at Baroda, preliminary inquiry was initiated and after receiving explanation from the petitioner, chargesheet was issued against the petitioner on 2nd August, 1986 for various irregularities which reflected his doubtful integrity and, therefore, according to the respondents, the performance of the petitioner has been far from that which would not support his claim for being retained in the Government service much less when it is coupled with the doubtful integrity. It is the contention of the respondents that if some person is efficient but his integrity is doubtful, then, it stands on a different footing. It is also mentioned in the reply filed by the respondents that in respect of the departmental inquiry that the petitioner was punished by imposing punishment of stoppage of one annual increment and the petitioner was not exonerated after the inquiry which relate to the negligence of the petitioner and also tampering with the cement register. It is also pointed out by the respondents that it was thought desirable in the public interest to retire the petitioner and, therefore, the powers under the rules has been rightly exercised by the respondents in the public interest. ##. Against the said reply, rejoinder has been filed by the petitioner and in the rejoinder, the petitioner has pointed out that in entire service career of 32 years, at no point of time, his integrity has been considered to be doubtful. The petitioner has also contended that for an alleged negligence found during the inspection between 3rd and 6th June, 1981 in respect of discharge of his duties at Multi Storeyed Building known as Narmada Bhuvan which was constructed at Baroda, a letter dated 23.2.1984 was addressed to the petitioner by Dy.Secretary, R & B Department asking him to submit explanation with regard to the work being done in improper manner. It has been contended that when the said letter was received by the petitioner, said building was already completed and it was already occupied by different offices. The petitioner has also submitted that the respondents should be asked to explain as to what tempted the respondents to remain silent from the month of June, 1981 till February, 1984 which is about two years and eight months in initiating the proceedings. It is also submitted that inspite of the aforesaid position, the petitioner was promoted from the post of Executive Engineer to the post of Superintending Engineer in February,1983 and ultimately on 2nd August, 1986, the petitioner has received chargesheet in respect of the aforesaid incident of 1981 six days prior to the order of compulsory retirement passed against the petitioner. ##. The respondents have filed further affidavit in reply by one Mr. V.C.Joshi, Under Secretary, Government of Gujarat,Roads and Buildings Department pointing out therein that the committee observed that in the departmental inquiry, the case concluded in the year 1981 relating to some bridge works and one annual increment was stopped without future effect as a punishment. Charges in that case was relating to tampering with cement register and allowing less use of the cement and poor workmanship. The committee has also observed that in another departmental inquiry, the case which was pending relating to construction work of multi storeyed building namely Narmada Bhavan which has suffered severe cracks on all the beams of all the floors. The petitioner had been charged with the allegations that he had allowed poor workmanship of structural work. The committee had considered it as a serious case and had come to the conclusion that it may safely be presumed that the case related to lack of integrity and that even the case decided in 1981 related to tampering of cement registers which also led to lack integrity. The committee had recommended that the petitioner should be made to retire on his attaining the age of fifty five years on 21.6.1986 after giving him three months' pay as required under the Rules. It has also been contended that the said recommendations of the reviewing committee was considered by the Government at the highest level and it was decided to retire the petitioner from service in public interest. It has been contended that the departmental inquiry relating to the construction of Narmada Bhavan was concluded in 1993 by which time the petitioner was retired and by order dated 2nd March, 1993, punishment of deduction of Rs.100/- per month from the pension of the petitioner for a period of five years was inflicted on the petitioner after consultation with the Gujarat Public Service Commission. It has also been pointed out that the aforesaid guidelines also provide that in the case of a government servant whose integrity is in doubt, it would be appropriate to consider him for premature retirement irrespective of an assessment of his ability or efficiency in work. ##. In the affidavit filed by Shri L.N.S. Mukundan, Chief Secretary to the Government of Gujarat, it has been pointed out that the chargesheet dated 22nd January, 1979 was served to the petitioner in respect of the work relating to approach road leading to the railway bridges on Orsang and Aswin Rivers for not using the cement as per specifications in the Toe Wall and pitching, tampering with cement records and negligence in performing his duty as Deputy Engineer. It has also been pointed out in the said affidavit that the petitioner has, in his defence statement, stated that he has done his work as per the specifications and therefore, the charges levelled against him are not proved. He has also denied all other charges leveled against him. He has also pointed out that on the said defence statement of the petitioner, it was opined by the concerned Superintending Engineer that the defence may be accepted and the petitioner may be exonerated. The deponent of the said affidavit has further contended that, however,, the Government has called for the opinion of the Superintending Engineer, Quality Control who also agreed with the opinion given by the concerned Superintending Engineer but he found that the petitioner was negligent in his overall supervision. It has, thereafter, been contended that in view of the finding given by the Superintending Engineer, Quality Control that only the charge with regard to negligence in supervision is proved against the petitioner, the department had suggested the penalty of censure and the competent authority in the Government decided that a penalty of withholding of one increment without future effect be imposed.It has been contended that in his report dated 3.9.1979, the Superintending Engineer,Quality Control has opined that it is difficult to make out if less cement was used and if so to what extent once the work is over. He, however, felt that using Tagara instead of measurement box and insufficient curing are lapses. He has opined in his report that these aspects are to be supervised on a day today basis by the staff on the field and not by the Deputy Engineer which the petitioner then was. Therefore, the Superintending Engineer Quality Control had concluded that the petitioner cannot beheld directly responsible for the deterioration in quality and further that as he was the supervising officer he can be held responsible for lack of adequate supervision. It has been also contended that the service record was placed before the review committee at the time when the committee was reviewing as to whether the petitioner should be continued in service at the age of 55 years or not. At that time, this fact was also considered. It has been submitted that another factor of defects in construction made for Narmada Bhuvan was taken into consideration and the review committee thereupon asked the petitioner to retire compulsorily from the service. It has been submitted that the review committee had also taken into consideration the integrity of the petitioner as doubtful and, therefore, he was asked to retire from the service prematurely. ##. Lastly, the respondents have filed affidavit of one Anil Bhatt, Under Secretary, Roads and Buildings Department, Government of Gujarat and it has been pointed out that rule 161(1)(aa)(i)(1) of the Bombay Civil Service Rules provides that an appointing authority shall, if he is of the opinion that it is in the public interest to do so, have the absolute right to retire a Government servant to whom clause (a) applies by giving him three months' pay and allowances if he is in class -I or class II service or post on or after the date on which he attains the age of 50 years. Thus, the rules empowers the appointing authority to retire any class I or Class II Officer on or after the date on which he attains the age of 50 years. With a view to implement the said provision, the Government has framed guidelines and criteria for reviewing the cases of the employees to retain them in service or to retire them on or after attaining the age of 50 years. These guidelines prescribe two reviews, one at the age of 50 years and another at the age of 55 years. Thus,in public interest, the government can retire a government servant after he attains the age of 50 years and also on