IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8503 of 1989 For Approval and Signature: Hon'ble MR.JUSTICE A.M.KAPADIA ============================================================ 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 : 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 Civil Judge? : NO -------------------------------------------------------------- J R PANDIT Versus DIST.PANCHAYAT -------------------------------------------------------------- Appearance: MR AS SUPEHIA for MR IS SUPEHIA for Petitioner MR SIRAJ GORI for MR HARIN P RAVAL for Respondent -------------------------------------------------------------- CORAM : MR.JUSTICE A.M.KAPADIA Date of decision: 09/03/2001 ORAL JUDGEMENT 1. This petition filed under Article 226 of the Constitution demonstrates the arbitrary and illegal order passed by the respondent/District Panchayat retiring the petitioner, a Lady Social Educational Organizer (Mukhya Sevika), compulsorily, on the alleged extraneous ground of sickness with retrospective effect, without authority of law and without affording opportunity of hearing and thereby violating the principles of natural justice. 2. The petitioner was appointed in the year 1961 as a Lady Social Educational Organizer (Mukhya Sevika) by the respondent and posted at Taluka level office under the District Panchayat. After considering her sincerity, efficiency and good service record, she was appointed on the post of Assistant Child Welfare Organizer by the respondent by order dated March 6, 1987 and posted at Dediapada. On account of her sickness, she took charge at Dediapada on November 21, 1987 after producing fitness certificate issued by the Neurologist, Civil Hospital, Ahmedabad. The petitioner thereafter continued to work at Dediapada as an Assistant Child Welfare Organizer. As she remained sick, she had availed leave from February 17, 1989 to February 24, 1989. Thereafter when she went to resume duties on February 27, 1989 she was not permitted to work by the Child Welfare Organizer but she was informed vide letter dated March 9, 1989, a copy of which is annexed at Annexure A, to remain present in the meeting in respect of Family Welfare Programme to be held on March 15, 1989 and accordingly the petitioner had attended the said meeting. 3. Thereafter the petitioner received a letter dated June 6, 1989 written by the Child Welfare Organizer, Dediapada, informing her that she was declared unfit to discharge her duties by the Civil Surgeon, Bharuch, vide certificate dated April 3, 1989 and as per the discussion with the District Development Officer on June 5, 1989, she should not come to discharge her duties at the office or visit any centre. A copy of the said letter dated June 6, 1989 is annexed at Annexure B. According to the petitioner, the said certificate dated April 3, 1989 alleged to have been issued by the Civil Surgeon, Bharuch was to the effect that the petitioner was fit for less laborious service than the service performed by her. The said certificate is annexed at Annexure C. The petitioner gave a reply dated June 16, 1989 informing the Child Welfare Officer that he was not the competent authority to restrain her from discharging her duties and hence till the competent authority passes an order for invalidity pension, she would remain in service. It is further say of the petitioner that as she has not been paid salary since March 1989, she has filed Regular Civil Suit No.21 of 1989 in the Civil Court (J.D.)., Dediapada against the respondent for the recovery of her salary for two months and for injunction restraining the respondent from stopping the salary payable to her every month. The said suit is still pending. 4. Thereafter suddenly the petitioner received the order dated October 9/11, 1989 passed by the respondent retiring her compulsorily from service on the ground of unfitness under Rule 165-A of the Bombay Civil Services Rules, 1959 ('the Rules' for short hereinafter) with effect from April 30, 1989 pursuant to the certificate issued by the Civil Surgeon, Bharuch. The said order is annexed at Annexure D to the petition. According to the petitioner, the said action of the respondent retiring her compulsorily on the ground of unfitness with retrospective effect from April 30, 1989 is highly arbitrary, illegal, unjust and violative of the fundamental rights guaranteed to the petitioner under Articles 14 and 16 of the Constitution of India inasmuch as even though the petitioner was in service till the date of the issuance of the order dated October 11, 1989, she has been retired by the respondent with retrospective effect from April 30, 1989, as mentioned in the said order which has caused great injustice to the petitioner. The petitioner, therefore, averred that the respondent has discriminated her from amongst the persons similarly situated by depriving her of the retirement benefits and the salary for the period she was on duty by giving retrospective effect to the order of compulsory retirement as mentioned in the impugned order. The petitioner, therefore, prays to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction under Article 226 of the Constitution of India quashing and setting aside the impugned order dated October 9/11, 1989 and directing the respondent to reinstate her in service with all consequential benefits. 5. The petition is contested by the respondent by filing its reply affidavit. On behalf of the respondent, Kumari Meeta A. Dave, Programme Officer, ICDS, District Panchayat, Bharuch has filed her affidavit and denied all the averments made in the petition. It is further stated therein that on the basis of the certificate dated April 3, 1989 issued by the Civil Surgeon, Bharuch and having regard to the provisions of Rule 165A of the Rules, the District Development Officer vide order dated October 9/11, 1989 has compulsorily retired the petitioner from service which action is not at all illegal and the order is in accordance with law. It is further, inter alia, stated therein that though the petitioner has obtained fitness certificate from Civil Hospital, Ahmedabad, and remained present at the office of Bal Vikas Yojna, at Dediapada, she could not carry out her work in the office as she was not able to speak clearly and, therefore, it was not possible to assign any work to her and as the petitioner was sick and was positively unfit for being employed and on the basis of the certificate issued by the Civil Surgeon, Bharuch, she was not competent to continue in employment on account of physical unfitness, a written proposal was made by the officer of Bal Vikas Yojna, Dediapada and after having considered the said proposal, the District Development Officer by communication dated June 6, 1989 informed the officer of the Bal Vikas Yojna accordingly to take action under Rule 165A of the Rules and the District Development Officer has acted as an administrative head of the District Panchayat and there is no illegality in the said action and the officer of the Bal Vikas Yojna was required to seek guidance from the District Development Officer and was bound to act in accordance therewith and, therefore, the order of compulsory retirement passed against the petitioner is just and proper. It is also mentioned in the affidavit in reply that the petitioner was in service prior to April 1, 1963 and as the Panchayat employees are Government servants their service conditions are subject to the provisions of the Rules which are applicable to them. Lastly it is stated that as per the record available and as per the original report, the petitioner is suffering from paralysis and, therefore, she is not fit to continue in service and taking her back in service is not in the interest of administration and hence it is urged that the petition may be dismissed. 6. Mr. Supehia, learned advocate for the petitioner, contended that the petitioner has been retired compulsorily under Rule 165A of the Rules which can be invoked in case of misconduct, insolvency or inefficiency on the part of an employee whereas the impugned order is passed on the ground of medical invalidity, relying upon the certificate dated April 3, 1989 issued by the Civil Surgeon, Bharuch. Since the petitioner was never sent for physical check up by the respondent, runs the further submission that compulsory retirement of the petitioner from service on the basis of the said certificate issued by the Civil Surgeon, Bharuch at the back of the petitioner is highly improper and is in utter disregard to the principles of natural justice and hence the order passed under the provisions of Rule 165A of the Rules is bad in law as there is no misconduct, insolvency or inefficiency alleged on the part of the petitioner. What is emphasised by the learned counsel is that even before invoking the provisions of Rule 165A of the Rules, procedures prescribed for imposing penalty are required to be followed and as per the proviso thereto before passing any such order, procedure referred to in Note 1 to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules shall have to be followed. But in the case of the petitioner the said procedure has not been followed while making the impugned order. What is stressed by the learned counsel is that the powers under Rule 161 of the Rules could have been involved for premature retirement in the public interest but that could not have been done in the case of the petitioner as the age of the petitioner was less than 50 years on the date of the impugned order as well as her 10 to 12 years' confidential reports only were required to be considered and in that event she would have got pension, gratuity, etc. It is emphatically contended that the petitioner could have been retired on the basis of the medical certificate even on invalidity pension under the provisions of Rule 201 of the Rules on the ground that she is permanently and completely incapacitated for further service in the Government. The certificate issued by the Civil Surgeon, Bharuch is to the effect that the petitioner is unfit to carry out her duties on account of old hemiparesis and she is not in a position to speak and if she is compulsorily retired on the basis of the said certificate in that case she would have got invalid pension. The learned counsel for the petitioner has further pointed out that having put 28 years of service she was a permanent employee and service of a permanent employee could not have been terminated or compulsorily retired without complying with the provisions of Article 311 of the Constitution as compulsory retirement is one of the major penalties as per Rule 5 (7) of the Gujarat Panchayat Service (Discipline & Appeal) Rules, 1964 ('the Panchayat Rules' for short hereinafter), and the said penalty could have been imposed only after following the procedures laid down in Rule 7 of the Panchayat Rules but no such procedure is followed in the instant case inasmuch as the order is made with retrospective effect from April 30, 1989 and hence it is illegal. It is authoritatively contended by the learned counsel that service of a permanent employee cannot be terminated without affording an opportunity of hearing but in the instant case no such opportunity was given to the petitioner before passing the impugned order compulsorily retiring her from service with retrospective effect and, therefore, the impugned the order is bad in law and is required to be quashed and sets aside. He further emphasised that in case of compulsory retirement on the ground of physical incapacity, procedure prescribed under Article 311 (2) of the Constitution must be followed. In support of the aforesaid contention, the learned counsel for the petitioner has cited judgment of this Court in the case of Digvijay B. Majmudar v. Union of India, 25 (2) GLR 1528. Lastly it is pointed out that the date of birth of the petitioner was January 4, 1941 and she had reached the age of superannuation at the age of 58 years on January 4, 1999 and, therefore, there is no question of reinstatement of the petitioner in service. However, she would be entitled to get all benefits including full backwages, promotion, etc., upto January 31, 1999 and thereafter pension, gratuity, etc., on the basis of continuity of service and he urged that this petition may be allowed by quashing and setting aside the impugned order and thereby directing the respondent to give full backwages, promotion, etc., to the petitioner upto January 31, 1999 and thereafter pension, gratuity, etc., on the basis of the continuity of service. 7. Mr. Siraj Gori, learned counsel for the respondent, contended that though the petitioner has obtained fitness certificate from Neurologist, Civil Hospital, Ahmedabad to resume duty in the office of Bal Vikas Yojna, Dediapada, she could not carry out any work in the office and was not able to speak properly and, therefore, it was not possible to assign any work to her and since she was unfit for being employed, on the basis of the certificate issued by the Civil Surgeon, Bharuch positively declaring the petitioner to be unfit, the matter was discussed with the District Development Officer, Bharuch and the petitioner is compulsorily retired under the provisions of Rule 165A of the Rules. Therefore, according to him, there is no illegality in the action on the part of the respondent. It is pointed out that the petitioner was taking treatment from the Civil Hospital, Bharuch and, therefore, Civil Surgeon, Bharuch, on proper examination, has issued certificate which positively states that the petitioner is unfit for service and, therefore, it was within the realm of authority to consider as to whether to continue the petitioner in service or to retire her compulsorily under Rule 165A of the Rules and, therefore, runs further submission that, the decision to compulsorily retire her is taken in public interest and in the interest of the administration and hence there is no question of violation of principles of natural justice. Lastly it is pointed out that the petitioner was in service prior to April 1, 1963 and as Panchayat employees are government servants they are subject to the provisions of the Rules and since the petitioner is suffering from paralysis as per last report, the petitioner is not fit to continue in service and, therefore, reinstating her in service is also not in the interest of administration and hence it is prayed to dismiss the petition. 8. I have considered the submissions of both the learned counsel appearing for the parties, documents forming part of the petition, relevant provision of the Rules and the Panchayat Rules and the judgments cited at the bar. 9. At the outset, be it noted that so far as the contentions of the petitioner with regard to her appointment of the petitioner as a Lady Social Educational Organizer (Mukhya Sevika) by the respondent, her promotion to the post of Assistant Child Welfare Officer and thereafter her compulsory retirement under the provisions of Rule 165 of the Rules on the ground of medical sickness are not in dispute. The contention that the petitioner was never sent for physical check up by the respondent to the Civil Surgeon, Bharuch at any point of time prior to her compulsory retirement is of no assistance and consequence to the petitioner in view of the contention that the petitioner was taking treatment from Civil Hospital, Bharuch which was not denied by the petitioner by filing affidavit-in-rejoinder and, therefore, the Civil Surgeon, Bharuch had examined her at the relevant time and hence he was competent to issue such a certificate. 10. The main controversy centers around in this petition is as to whether the action of the respondent in compulsorily retiring the petitioner, who is a permanent employee suffering from ailment, under the provisions of Rule 165A of the Rules is justified? To answer the aforesaid question it would be advantageous to reproduce relevant rules which have direct bearing on the decision of this legal issue. Rule 165A of the Rules reads as under: "A competent authority may remove any Government servant subject to these rules from Government service, or may require him to retire from it, on the ground of misconduct, insolvency or inefficiency: Provided that before any such order is issued the procedure referred to in Note 1 to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules shall be followed. Note 1.- In the case of Police Officers of subordinate ranks, a competent authority in the Police Department can exercise his discretion under this rule after observing the procedure laid down in Chapter XV of the Bombay Police Manual, 1950, Vol.I, and Section 26 of the Bombay Police Act, 1951. Note 2.- Except where it is expressly stated otherwise 'removal' includes the case of a Government servant, who has been asked to retire under this rule." There is no manner of doubt that in exercise of powers conferred under Rule 165A of the Rules, the competent authority may remove or retire any government servant on the ground os misconduct, insolvency or inefficiency. However, before taking such a drastic action he has to follow the procedure laid down in the Note 1 to Rule 33 of the Bombay Civil Services Conduct, Discipline and Appeal Rules. On examining the record of the case, it is clear that the competent authority has not followed the procedure referred to above. 11. It is true that the petitioner had joined the services prior to April 1, 1963. The Panchayat employees who are appointed prior to the said date are considered as government employees and their service conditions are subject to the provisions of the Rules and, therefore, the competent authority can invoke provisions of Rules but that does not mean that the provisions of the Panchayat Rules can be ignored. Part II of the Panchayat Rules relates to discipline. Penalties are prescribed under Rule 5 thereof. It would also be advantageous to refer to Rule 5 of the Panchayat Rules which reads as under: "5. Penalties.-- The following penalties may, for good and sufficient reasons, and as hereinafter provided be imposed on a member of the Panchayat Service, namely:-- (1) Censure, (), (4) Withholding of increments or promotions, (5) Recovery from pay of the whole or part of any pecuniary loss caused to the panchayat by negligence or breach of orders, (6) Reduction in rank including reduction to a lower post or time-scale or to a lower stage in a time-scale, (7) Compulsory retirement, (8) Removal from service not disqualifying for future employment, (9) Dismissal from service which shall ordinarily be a disqualification for future employment: Provided that, in the case of members who have been allocated to the panchayat service under section 206 of the Act and who, according to the terms and conditions of their service which were immediately applicable to them before such allocation were not liable to the penalty of fine, no penalty of fine shall be inflicted upon them. Explanation-- The following shall not amount to a penalty within the meaning of this rule:- (i) Withholding of increments of a member of the Panchayat Service for failure to pass a departmental or language examination in accordance with the rules or orders governing the service to which he belongs or the post which he for the time being holds or the terms governing his appointment. (ii) Stoppage at the efficiency bar in the time scale of pay on the ground of his unfitness to cross the bar. (iii) Non-promotion of a member of the Panchayat service, after consideration of his case, to a post or grade to which he is eligible, on administrative grounds unconnected with his conduct. (iv) Reversion of a member of the Panchayat Service who is officiating in a higher service, grade or post to a lower service grade or post on the ground that after trial he is considered to be unsuitable for such higher service, grade or post or on administrative grounds not connected with his conduct. (v) Reversion of a member of Panchayat Service, appointed on probation to another service, grade or post, during or at the end of the period of probation, to his permanent service, grade or post, in accordance with the terms of his appointment or the rules or orders governing such probation. (vi) (a) Termination of the services of a member of the panchayat service appointed on probation during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation. (b) Termination of the service, of a member of the Panchayat Service, employed under an agreement in accordance with the terms of such agreement. (vii) Compulsory retirement of a member of a Panchayat Service in accordance with the provisions relating to his superannuation or retirement in the Panchayat Service and not on grounds of his conduct." By virtue of clause (vii) of Rule 5 of the Panchayat Rules, a member of the Panchayat service can be compulsorily retired in accordance with the provisions relating to his superannuation or retirement in the panchayat service and not on grounds of his conduct. 12. At this stage it would be also appropriate to refer to Rule 7 of the Panchayat Rules which reads as under: "7. Procedure for imposing major penalties.-(1) No order, imposing on a member of the Panchayat Service any of the penalties specified in clauses (6) to (9) of rules shall be passed except after a formal inquiry is held as far as may be, in the manner hereinafter provided. xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx" From a plain reading of the aforesaid rule it becomes abundantly clear that without holding a formal inquiry as far as may be in the manner provided in the said rule, no order imposing penalty on a member of the Panchayat Service should be passed. In the said rule, the whole procedure is prescribed from the stage of preliminary inquiry to the conclusion of the inquiry and if the charge against the delinquent is proved then imposing of the penalty as well. 13. So far as the instant case is concerned, the petitioner has been compulsorily retired by the respondent by invoking the provisions of Rule 165A of the Rules and, therefore, the question that arises for determination is as to whether the conditions of service of an employee who joined the service of the Panchayat prior to April 1, 1963 shall be governed by the provisions of the Rules or the Panchayat Rules and secondly whether the service of a permanent Government servant who is appointed substantively to a permanent post can be terminated without giving him opportunity of hearing? 14. To answer the aforesaid two questions, now let us examine the case law decided by the Supreme Court and this Court. 15. In Parshottam Lal Dhingra v. Union of India, AIR 1958 SC 36, the Supreme Court has observed that where a person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with Article 311 (2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant's rights and brings about a premature end of his employment. 16. In the case of Moti