IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 7973 of 1989 For Approval and Signature: HON'BLE MR.JUSTICE AKSHAY H.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- M. T. PATEL Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 7973 of 1989 MISS MAHROOK KERRAVALA for TANNA ASSOCIATES for Petitioner No. 1 MR PD BHATE, AGP for Respondent No. 1 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE AKSHAY H.MEHTA Date of decision: 17/03/2004 ORAL JUDGEMENT 1. In this petition the order regarding compulsory retirement passed against the petitioner has been challenged. The petitioner was appointed as Aval Karkun in the State's service with effect from 4th December, 1954. He was thereafter promoted to Class-II post of Mamlatdar on 5th October, 1964. On 16th February, 1979 he was again promoted in Class-I on the post of Deputy Collector. Subsequently the petitioner was sent on deputation as Special Land Acquisition Officer with Gujarat Housing Board. While he was working on that post, order of compulsory retirement was passed by the respondent on 14th June, 1988 relieving him from the service with effect from 15th June, 1988. The impugned order annexed to this petition at Annexure-A shows that it was passed in accordance with the clause (aa) of sub-rule (i) of rule 161 of the Bombay Civil Service Rules, 1959 (for short 'B.C.S.R.'). The order further shows that it was passed on the ground of interest of public service. In the said order it was also clarified that the departmental proceedings which were going on against the petitioner then would continue even after the retirement. 1.1. It appears from the record of the petition that during the tenure of his service the petitioner faced two departmental inquiries. The first inquiry that was initiated against the petitioner was in the year 1965. The said inquiry pertained to the incident which took place in the year 1965. The charge against the petitioner was that he had changed the applications for subsidy in order to bring them within time. This inquiry was initiated when he was holding a post in Class-III service. During the pendency of these proceedings he was promoted to the post of Deputy Collector in Class-I. The second inquiry was initiated against him just four days prior to the date of the impugned order. It was initiated on the charge that despite the fact that petitioner did not have any authority to hear and decide the cases filed under the Devsthan Inam Abolition Act, he had disposed of many cases under the said Act. The second charge against him was that in Case No. 172 of 1982 he did not permit the tenant to cross-examine the landlord. The defence of the petitioner in the said inquiry was that upon his transfer from Dholka to Ahmedabad, he was given additional charge of one Mr. Bhutiwala, who had retired and as such he was authorized to hear the cases under the Devsthan Inam Abolition Act. So far the second charge is concerned, it was not that he did not permit tenant to cross-examine the landlord, but he himself had sought adjournment by giving an application for joining some other interested persons in the proceedings. It appears that so far the first inquiry was concerned, he was visited with minor punishment of deduction of Rs.200/= from his basic pension. So far the second inquiry is concerned, it resulted into exonerating petitioner from both the charges. 1.2. Against the impugned order of compulsory retirement, the petitioner had approached this Court by way of Special Civil Application No. 3214 of 1988. This Court had issued notice pending admission to the respondents. However, it appears that in the meanwhile the petitioner had also preferred appeal to the Government of Gujarat against the impugned order which was then not decided. This Court by order dated 10th February, 1989 passed in Special Civil Application No. 3214 of 1988 with Civil Application No. 170 of 1989 had directed the Government to dispose of the appeal filed by the petitioner expeditiously and without further loss of time. The Court had granted period of one month to decide the appeal. Upon the said order being passed, the petitioner had withdrawn Special Civil Application No. 3214 of 1988 together with Civil Application No. 170 of 1989. It appears that in view of the said order, the petitioner had made a representation which was in furtherance of the appeal that was already filed. In view of the direction given by this Court, the Government had decided the appeal and the said decision was communicated to the petitioner by the Deputy Secretary, Revenue Department by letter dated 10th March, 1989 wherein it was stated that the representation/appeal of the petitioner against the order of premature retirement was considered by them as per the direction of the Gujarat High Court and the Government had decided to reject the representation, note of which be taken by the petitioner. In this petition both the orders of compulsory retirement as well as the order rejecting the petitioner's appeal are sought to be challenged by the petitioner. 1.3. In the meanwhile, the petitioner, who was born on 24th October, 1932, had reached the age of superannuation on 24th October, 1990. 1.4. This petition has been filed on various grounds. However, the main ground is that the order of compulsory retirement passed against the petitioner is punitive in nature and respondent has failed to comply with the requisite procedure including the principles of natural justice and, therefore, it is required to be quashed and set aside. There are other averments also made in the petition such as, that the order has been passed to victimize the petitioner; that both the orders suffer from inherent infirmities because they are not speaking orders and the petitioner has been kept totally in the dark on what basis order of compulsory retirement has been passed against him. 1.5. The petition has been resisted by the respondent by filing affidavit-in-reply wherein it has been contended that the impugned order has been passed mainly on the ground of public interest and/or interest of the public service and it has been passed in accordance with the criteria which has been described in the resolution dated 28th July, 1987 issued by the General Administration Department, Government of Gujarat. [G.A.D.]. It has been further averred that the impugned order has been passed as there were two departmental proceedings pending against the petitioner and also on the scrutiny of his service record, it was found that his integrity was doubtful and, therefore, it was necessary not to continue him any more. 2. Miss Kerravala, learned advocate appearing for the petitioner has submitted that this is a glaring case of victimization, because the petitioner was charge-sheeted in 1978 for the incident that had taken place in the year 1965 and the inquiry in respect of the same was concluded in the year 1991 i.e. almost 3 years after the retirement of the petitioner and second inquiry came to be initiated only 4 days before the date of impugned order. According to her, this was nothing but colourable exercise of power. She has further submitted that there is nothing on record to show on what basis the subjective satisfaction had been formed by the concerned authority to pass the order. Both the impugned order as well as order in appeal are totally silent on this aspect. She has also submitted that though it is termed as simple order of compulsory retirement, in fact it is punitive in nature passed with a view to circumvent the regular procedure. According to her, if inquiry for the purpose of passing the impugned order had been held in time, the petitioner would have been exonerated keeping in view the facts and circumstances of the case. Lastly, she has submitted that the impugned order as well as the order in appeal deserve to be quashed and set aside. 2.1. As against that, Mr. P.D. Bhate, Ld. AGP has placed reliance on the aforesaid Government Resolution and in particular the criteria for passing order of compulsory retirement mentioned therein and has submitted that the order was passed in view of the fact that there were two departmental proceedings pending against the petitioner and also on the ground of doubtful integrity. He has further submitted that in the affidavit-in-reply it has been specifically averred that a criminal case is pending against the petitioner under the provisions of the Prevention of Corruption Act at Surat. He has, therefore, supported the impugned order. 2.2. Both the learned advocates have placed reliance on various decisions of this Court as well as the Apex Court, which will be referred to in due course of this judgment. 3. Question that arises for consideration is what is the nature of this order? Obviously according to the respondent, it has been passed in accordance with the provisions of rule 161 of the B.C.S.R. and in accordance with the Resolution of the G.A.D. If the affidavit-in-reply filed by the respondent is perused, it shows that the case of the petitioner was considered by the Review Committee and the Review Committee, upon scrutiny, came to the conclusion that the integrity of the petitioner was doubtful and, therefore, irrespective of the assessment of his ability and the efficiency of work he was required to be compulsorily retired. It is also averred in the affidavit that complaints had been received against the petitioner while he was working as Special Land Acquisition Officer in Gujarat Housing Board which were taken into consideration by the Review Committee and in respect of the said complaints investigation was made by the Anti Corruption Bureau, Surat and criminal case has been filed against the petitioner at C.R. No. 14/1998. It may be recalled here that the petitioner was compulsorily retired on 15th June, 1988 and offence came to be registered against the petitioner in the year 1998. The affidavit further shows that the Review Committee had also taken into consideration the fact regarding pendency of two departmental proceedings against the petitioner. 3.1. Whatever that has been submitted in this affidavit has never come on record before. In other words, neither in the impugned order nor in the order passed in appeal of the petitioner, these facts are disclosed. It is interesting to note that the factor which appears to have weighed with the Review Committee is pendency of two departmental proceedings against the petitioner, out of these two one has resulted into imposition of minor punishment and that too after almost 26 years of the date of the incident, by then the petitioner had already retired by virtue of the impugned order. It is sought to be contended by Mr. Bhate that the charge-sheet was served in the year 1978 and the reply of the petitioner was filed in the year 1984 and that had caused delay. However, one fails to understand when the incident had taken place in the year 1965, how at such a belated stage the charge-sheet came to be issued against the petitioner and even thereafter why for such a long period no decision could be taken in the matter even after reply of the petitioner was filed in 1984. It is quite possible that if the proceedings had been initiated against him in time and it had been concluded within reasonable time, the inquiry would not have remained pending when Review Committee met and it might not have been taken into consideration for assessing the petitioner's performance of service in light of the criteria laid down in the said resolution. The criteria is whether any disciplinary proceedings are pending or contemplated against the employee. Thus, timely action on the part of respondent could have resulted into completion of the inquiry much before Review Committee met. Secondly even during the pendency of the said proceedings the petitioner was promoted to Class-I post and subsequently even permitted to cross the efficiency bar. What would be the effect of this, would be considered little later in light of the judgments that have been cited before me. 3.2. So far second departmental inquiry is concerned, the order dated 17th November, 1993 shows that the petitioner has been exonerated of both the charges levelled against him. Thus, the factors that have been taken into consideration by the Review Committee regarding pendency of the departmental proceedings have ultimately turned out to be of no significance at all. 3.3. The next question that arises for consideration is when the impugned order has been passed by the respondents on the basis of the opinion of the Review Committee regarding doubtful integrity of the petitioner and the said order is challenged before the competent court of law, whether the facts and circumstances that had been taken into consideration by the Review Committee were required to be brought on record to enable the Court to take appropriate decision. As stated above, neither in the impugned order nor in the appeal nor even in the affidavit-in-reply filed by the respondent the basis for forming such subjective satisfaction have been disclosed. The respondent has clearly stated that the order was passed on the ground of doubtful integrity and nothing more than that has been stated in the affidavit-in-reply. Ofcourse, it has also been stated that Criminal Case has been filed under the provisions of the Prevention of Corruption Act by the Anti Corruption Bureau, Surat having C.R. No. 14 of 1998. This fact is mentioned with a view to show that complaints which had been received when he was working as Special Land Acquisition Officer with Gujarat Housing Board had been taken into consideration by the Review Committee. It is a matter of surprise that the Anti Corruption Bureau took almost 10 to 12 years to investigate into this case. As stated above, the petitioner retired with effect from 15th June, 1988; meaning thereby that all these incidents must have taken place prior to the said date and the F.I.R. appears to have been registered ten years after the retirement in the year 1998 by the Anti Corruption Bureau as the C.R. No. is of 1998. The said F.I.R. relates to which matter it is not known because no further details have been provided by the respondent to this Court, despite the fact that ample time was granted by me to the Ld. AGP to furnish details regarding this case. Neither the A.G.P. nor the officers of the respondents who attended the Court proceedings were able to throw any light despite the fact that hearing was adjourned several time for this purpose. According to Miss Kerravala her client has never been summoned to any Court till this date. Thus, even this Court is kept in the dark on what basis the subjective satisfaction was arrived at by the competent authority on the ground of doubtful integrity. It may be worthwhile to note here that a decision of the Apex Court has been relied on by Mr. Bhate, which is rendered in the case of State of Orissa v. Ram Chandra Das and reported in AIR 1996 S.C. p. 2436. The facts of that case show that when the proceedings were pending before the Tribunal the entire record of the Review Committee was placed before the Tribunal. No such effort has been made by the respondent in this case. Be that as it may. Now the question which is required to be considered is when the impugned order is passed on the grounds mentioned above, what could be the nature of such order and especially when during the pendency of the departmental proceedings the petitioner is not only promoted to a post in Class-I but even permitted to cross efficiency bar on that post. 3.4. Miss Kerravala has placed heavy reliance on the decision of the Division Bench of this Court [Coram : R.C. Mankad, Actg. C.J. & C.K. Thakkar, J. as they then were] rendered in the case of Purshottambhai A. Patel v/s. The State of Gujarat in Special Civil Application No. 28 of 1990 dated 12th October, 1990. IN that case the petitioner had challenged the order of compulsory retirement which was passed under rule 161 of the B.C.S.R. During the course of the judgment it has been observed by the Division Bench that it is well settled principle of law that the order of compulsory retirement does not amount to dismissal even from service within meaning of Article 311 of the Constitution of India. However, it is open for the aggrieved person to challenge such decision that the requisite opinion had not been formed bonafide or that the decision was based on collateral ground or it was arbitrary. The Court has observed as under:- ".... It is, however, always open to an aggrieved party, to contend that the requisite opinion, has not been formed bonafide or that the decision is based on collateral ground or arbitrary. Under the guise of "public interest" if unlimited discretion is regarded acceptable for making order of compulsory retirement, it will be the surest menace to public interest and must fail for unreasonableness, arbitrariness and disguised dismissal, the exercise of power must be bonafide and should promote public interest. ..." In the said decision Division Bench has placed reliance on the case of Ram Ekbal Sharma v/s. State of Bihar reported in AIR 1990 S.C. 1369 and has observed that even the Apex Court in view of the fact that the case of the State was that the concerned employee had committed financial irregularity leading to financial loss to the State, had held that the order of compulsory retirement was penal in nature and it was passed by way of punishment. Ultimately after discussing several judgments of the Apex Court, the Division Bench has come to the following conclusion :- "It is true that since an action of compulsory retirement is not penal in nature, the principles of natural justice do apply in such cases. As held by the Supreme Court in Colonel J.N. Sin's case (supra), the provisions relating to compulsory retirement do not in terms require that an opportunity should be given to the concerned Government servant to show cause against his compulsory retirement. In fact, it is "absolute right of the Government" to retire a Government servant if it is of the opinion that it is in the public interest to do so. If the authority bonafide forms that opinion, cannot be questioned before the Court. The Court is not an appellate forum to decide the propriety of such opinion formed by the Government. But at the same time, it should not be forgotten that such opinion must be bonafide, genuine and reasonable and not arbitrary or unreasonable though the Courts are not appellate authorities they can certainly go into the foundation of the requisite opinion formed by the Government notwithstanding the form of the order." Thereafter the Division Bench in light of the facts and circumstances of the case before it, held that the said case was directly covered by the judgment of the Apex Court and the impugned order was required to be quashed. 3.5. Miss Kerravala has also placed reliance on the decision of the same Division Bench rendered in the Letters Patent Appeal No. 9 of 1988 dated 7th November, 1990. Judgment of the Division Bench shows that in that case complaints were received against the concerned employee regarding acceptance of bribe, favouritism, and committing acts of irregularities and illegalities while conducting the acquisition proceedings of lands for Guhai irrigation scheme and allotment of land for agricultural as well as residential purposes to the affected persons. In view of the aforesaid, Review Committee in that case formed the opinion to the effect that the integrity of the employee was doubtful and the Review Committee recommended to the Government to compulsorily retire the said employee from service. The Government thereafter, passed order of compulsory retirement from service on 27th March, 1986, in view of the recommendation of the Review Committee. That order ultimately became the subject matter of the Letters Patent Appeal before the same Division Bench (i.e. R.C. Mankad Acting Chief Justice & C.K. Thakkar, J.). While disposing of the appeal, the Division Bench stated that the facts in the Letters Patent Appeal were similar to the facts of the Special Civil Application No. 28 of 1990, which was disposed of by it on October 12, 1990 and it was stated that the said decision would govern the instant case also. The Division Bench further held that the reasons which weighed with it in allowing the Special Civil Application No. 28 of 1990 would apply with equal force to the facts of the instant case i.e. Letters Patent Appeal. It, therefore, did not think it fit to restate the reasons and allowed the appeal in light of the decision rendered in Special Civil Application No. 28 of 1990. 3.6. If the facts of the Letters Patent Appeal are closely perused, there is similarity between those facts and the facts of the case before me. In the present case also the factors that have been taken into consideration by the Review Committee are not only the pendency of the departmental proceedings against the petitioner but also the complaints that had been received by it and placed before it regarding the alleged corrupt practice adopted by the petitioner while working as Special Land Acquisition Officer on deputation with Gujarat Housing Board. If that be so, the present case will have to be decided in light of the decision of the Division Bench referred to above, as the said decision would apply with equal force to the facts of the present case. 3.7. Apart from this, Miss Kerravala has also placed reliance on the decision of the Apex Court rendered in the case of State of Gujarat v/s. Umedbhai M. Patel reported in (2001) 3 S.C.C. p. 314. In para. 11 of the said decision the Apex Court has enumerated the definite principles relating to compulsory retirement, which are as follows :- "11. The law relating to compulsory retirement has now crystallised into definite principles, which could be broadly summarised thus : (i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure." The principles at serial nos. (vi), (vii) and (viii) are very much relevant for the purpose of deciding this case. In the instant case, as can be seen from the record of the petition, the petitioner was not only promoted to Class-I post during the pendency of the proceedings, but he was later