1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5610 OF 2004 Choudhari Mohd.Abdul Kadar, S/o.Mohd.Yusuf, Age-55 years, Occu-Service, R/o.Mahella Hafte Biradran, Udgir, Tq.Udgir, Dist. Latur PETITIONER VERSUS 1. The Chief Officer, Municipal Council Udgir, Tq.Udgir, Dist. Latur. 2. The President, Municipal Council Udgir, Tq.Udgir, Dist. Latur, 3. The District Collector, Dist. Latur. 4. The Divisional Commissioner and The Regional Director of Municipal Administration, Aurangabad, 5. The State of Maharashtra, Through its Secretary, Department of Urban Development, Mantralaya, Mumbai-32 RESPONDENTS Mr.M.S.Choudhari, learned counsel for the petitioner. Mrs.B.R.Khekale, learned A.G.P. for respondent State. Mr.P.V.Barde, learned counsel for respondent no.1 and 2. 2 (CORAM : V.R.KINGAONKAR, AND A.V.POTDAR, J.J.) RESERVED ON : 08/10/2010 PRONOUNCED ON : 27/10/2010 JUDGMENT : (Per A.V.Potdar, J.) 1. By the present writ petition, under Article 226 of The Constitution of India, the petitioner has approached this Court for the reliefs in terms of prayer clause (B) to (E) which read as follows : B. To quash and set aside the resolution no.29 dtd. 29/07/2004 and notice of compulsory retirement of petitioner issued by the respondent no.1 MCU/Est.-2/420/04, dtd. 31/07/2004 issued by the respondent no.1. C. To direct the respondent no.1 and 2 to award promotion to the post of Senior Clerk to the petitioner w.e.f. 21/03/1985 and subsequent promotions and service benefit as per law and in view of the seniority and reservation against the handicapped and OBC and other consequential service benefits. D. To direct the respondent no.1 to grant two days leave of dated 20/01/2004 and 21/01/2004 which has been refused and treated as absent from duties. E. The respondent no.5 may kindly be directed to hold inquiry against the respondent no.1 and 2 regarding their mis- management, irregularities, corrupt practices, acting as a dictator not acting as per law and directions of the higher 3 authorities and to punish them accordingly. 2. It appears that rule was issued in this writ petition on 14/09/2004. 3. Before considering the submissions of learned counsel for the petitioner, and for respondent no.1 and 2, it is necessary to consider the chequered history of long litigation between the petitioner and respondent no.1 and 2, which is not under dispute. A) On 13/01/1970, petitioner was appointed as Jr.Clerk in Udgir Municipal Council, Udgir. It is alleged that in the year 1985, two employees namely B.Y.Shinde and Chisti Yusufoddin, alleged to have been junior to him in service, were promoted to the post of Senior Clerk. Petitioner has challenged his promotion by preferring an appeal bearing no.1985/MUN/R/43 before The Additional Commissioner and Regional Director, Municipal Administration, Aurangabad (Respondent no.4 herein.) The said appeal was disposed of vide order dated 18/02/1987, by directing Municipal Council, Udgir to decide the claim of the petitioner within the period of 3 months. B) As the directions issued dated 18/02/1987 were not complied by respondent no.1 and 2, petitioner had filed writ petition no.1737/1987 before this Court. The said writ petition was disposed of by an order dated 23/01/1990, directing respondents no.1 and 2 4 to promote the petitioner with immediate effect. As the order dated 23/01/1990 was not complied by respondents no.1 and 2, petitioner had filed CP No.226/1990. On receipt of show cause notice in the said contempt petition, petitioner was allowed to resume his duties as a Senior Clerk w.e.f. 09/12/1990. C) Within 2 weeks after 09/12/1990, petitioner was suspended from his service w.e.f. 20/12/1990. Said suspension order was challenged by way of Civil Application No.3951/1990 in CP No.226/1990. By order dated 10/07/1991, the civil application was allowed by quashing the order of suspension. Petitioner was re- instated in service as Sr.Clerk w.e.f. 30/07/1991. D) By order dated 12/10/1991, the petitioner was reverted to the post of Jr.Clerk. Again the order was challenged before this Court by filing Writ Petition No.3716/1991. In the said writ petition, interim order was passed on 05/12/1991, and the said reversion order was stayed as the order of status-quo ante was passed. As the interim order was not obeyed by respondent no.1 and 2, petitioner had filed CP No.21/1992 before this Court. After receipt of show cause notice, respondent no.1 and 2, by their order dated 15/02/1992, allowed the petitioner to join the duties as Sr.Clerk w.e.f. 20/02/1992, but it is contended that he was not assigned the work of Sr.Clerk. 4. It is further contended by the petitioner that as per resolution 5 passed by the Government of Maharashtra, he was entitled for promotion of Sr.Clerk w.e.f. 1985. Petitioner had submitted various representations to that effect, but those representations were not considered by respondent no.1 and 2. It is also contended that the first respondent had submitted proposals respectively dated 23/03/1993, and 14/11/1993 to respondent no.2 for promotion of petitioner from 19/02/1990, instead from 21/03/1985 and for re- fixation of pay scale. Respondent no.2 had consented the said proposal and accordingly office order dated 30/03/2003 was issued. 5. It is further contended that the petitioner was assured that his case will be considered for further promotion if he will withdraw the pending proceedings before this Court. Relying on this assurance, petitioner had withdrawn the writ petition no.1737/1989 and CP No. 226/1990 on 21/09/2001. It is further contended that later on the assurance given to the petitioner was not complied with, hence petitioner had filed various representations before the competent authorities. 6. The petitioner had made certain allegations against respondent no.1 and 2 about their illegal demands and submitted complaints to that effect to respondent no.3. It is also contended that respondent no.3 to 5, being satisfied with the representations of the petitioner, issued certain directions to that effect to respondent no.1. It is also contended that the respondent no.4 directed respondent no.3 to decide the claim of the petitioner vide letter dated 24/02/2004. It is 6 contended that on 08/01/2004, respondent no.1 and 2, called the petitioner to submit the report of work done by him in last 5 years, to which explanation was offered by the petitioner on 12/01/2004. It is further contended that the respondent no.1 and 2 have called upon a special meeting on 12/02/2004, in which resolution no.23 was passed to conduct the inquiry against the petitioner by suspending him during the inquiry, if required. It is also resolved in the said resolution that if the petitioner found guilty in the said inquiry, then action of compulsory retirement be taken against the petitioner. It is further contended that on 29/07/2004, resolution no.29 was passed by respondent no.1 and 2, and thereby petitioner was compulsorily retired from services w.e.f. 01/08/2004. Accordingly, notice dated 31/07/2004 was served upon him with the payment of 3 months salary. This order is challenged in the present writ petition for the grounds stated in para no.16(I) to (XVII) of the writ petition. 7. After the rule was issued in this writ petition, affidavit in reply was filed on behalf of respondent no.1 and 2, inter alia contending that the petitioner was appointed only as a 'typist' and not as a 'Jr. Clerk-cum-typist', hence he is not liable for the promotion of 'Sr.Clerk'. It is further contended that the petitioner has mis- interpreted the order passed in the appeal by 4th respondent. According to these respondents, there was no approved vacant post of Sr.Clerk, neither the petitioner was holding requisite qualification, which is required for the post of Sr.Clerk. Only to honour the interim order passed by this Court, in writ petition no.1373/1989, 7 petitioner was appointed as Sr.Clerk w.e.f. 09/12/1990, but the petitioner was suspended on 20/12/1990 due to his mis-conduct and mis-behaviour with the citizens of Udgir town. However, by virtue of interim order passed in civil application by this Court, he was re-instated on 30/07/1991. It is further contended in the said affidavit in reply that the Government Resolution passed by the Government of Maharashtra, on which the petitioner has relied upon, are not applicable to the case of the petitioner, as the promotional post mentioned in the said resolution is to be filled from the clerical category, and not from the typist category. The promotion was granted to the petitioner, only to honour the interim order passed by this Court, but further higher pay scale was not granted to him after 12 years. These respondents specifically denied that he is not entitled for the deemed promotion from the year 1985. It is further contended that on the basis of forged documents, promotion of senior clerk was awarded to the petitioner on 30/03/2003 from 21/03/1985. It is denied by these respondents that on their assurance, petitioner had withdrawn pending writ petition and contempt petition in the High Court. It is alleged that the petitioner is habituated to lodge baseless complaints against every Chief Officer of the Udgir Municipal Council, District Collector and all the high profile office bearers. In paragraph 13 of the affidavit in reply, it is specifically contended by these respondents that the order of compulsory retirement was given to the petitioner in the public interest after scrutinizing the performance of the petitioner by the Municipal Council. It is contended that the petitioner was ignorant 8 of his duties since his appointment, for which several warning memos were issued to him. It is contended that the petitioner has misused his post by using office stationary and type-writer for his personal job to gain monitory benefit, for which several show cause notices were issued to him. In paragraph no.14, it is contended that the petitioner used to collect more amount from the public at large than the prescribed rate as the copying charges, to provide the copies of the record. While preparing the statement of pay fixation of the employees, in accordance with the re-commendation of the Bhole Commission, the petitioner made certain over-writing in his own figure of pay fixation and added some words against his name in the said statement. It is further contended that the petitioner was entrusted with the duties of 'Godown Keeper'. He allowed certain businessmen to clear their articles without charging and collecting the requisite octroi. He has also made certain overwriting in the Birth and Death Entries Register, when he was In-charge. For all these counts, he was kept under suspension from time to time. It is further contended that he was entrusted with the duties of 'Tree Inspector'. At that time, he had sold certain trees, which were cut, for which complaint was lodged with the police. When the petitioner was allotted the work of maintaining 'Inward and Outward Register', he has not attended his duties for more than 2 months. When the petitioner was entrusted with the duties of 'One Window Project', he has not attended the duties till his retirement. For these reasons, it is prayed that the writ petition is devoid of any merits and to be dismissed with costs. 9 8. Record reveals that at the time of issuance of Rule, learned A.G.P. waived the notice for respondent no.3,4 and 5, but the record shows that no affidavit in reply was filed on behalf of these respondents to oppose the writ petition, neither learned A.G.P. has participated in the hearing of this writ petition. 9. In this background, we have heard submissions of learned counsel for the petitioner followed by the submissions of learned counsel for respondent no.1 and 2. 10. At this juncture, we may take the note of one fact that the writ petition was filed in the year 2004. At that time, age of the petitioner was 55 as mentioned in the cause title of the writ petition. Then, it is but natural that when the writ petition came upon board for final hearing, the petitioner, if in service, might have been retired due to attaining his age of superannuation i.e. after completion of age of 58 years. In view of this, prayers in terms of prayer clause D and E became redundant. 11. Further, we have to take a note of the fact that when the writ petition was on board on 13/08/2010, we have noticed that the copies of Municipal Resolution dated 12/02/2004 and 29/07/2004 were not annexed with the writ petition. Specific statement is found made in the body of the writ petition by the petitioner that even though he had applied for the copies of Municipal Resolution of 10 12/02/2004, and 29/07/2004, copies of those 2 resolutions were not supplied to him, hence directions were given to the learned counsel for respondent no.1 and 2, to produce the copies of those resolutions and to produce the outward numbers to show, whether in reality, the copies of those 2 resolutions were supplied to the petitioner, or the petitioner has made incorrect or false statement in the petition that copies of those 2 resolutions were not supplied to him. We have also directed the learned counsel for first respondent to produce the entire record pertaining to the administrative decision including the resolutions and the file about the proceeding of compulsory retirement of the petitioner from service under Rule 65(1)(b) of The Maharashtra Civil Services (Pension) Rule, 1982. By our order dated 03/09/2010, we have also directed to learned counsel for respondent no.1 and 2 to make available the record pertaining to Annual Confidential Report of the petitioner of 5 years preceding to the order of compulsory retirement on the adjourned date. To our utter surprise, when the petition was taken for final hearing, on that day, the record pertaining to the Annual Confidential Report was not produced before the Court and the learned counsel for respondent no.1 and 2 expressed his inability to produce the record pertaining to Annual Confidential Report of 5 preceding years or so before this Court, as according to him, such record is not made available to him to produce it before this Court inspite of specific directions of this Court. 12. During the course of submissions across the bar, on behalf of 11 learned counsel for the petitioner, it is contended that the action of compulsory retirement taken against the petitioner is malafide and against the principal of natural justice. Before passing the resolution dated 29/07/2004, no opportunity of hearing was given to him, nor any departmental inquiry was conducted against him as per the earlier resolution no.23 dated 12/02/2004. According to learned counsel for petitioner, the action of compulsory retirement taken against the petitioner by respondent no.1 and 2 is against the provisions of Law. In support of his contention, learned counsel for petitioner placed his reliance in the matter of Sukhdeo Versus Commissioner Amravati Division, Amravati and another, reported in (1996) 5 SCC 103, wherein it is observed in paragraph no.6 that,"it is settled law that when the Government resorts to compulsorily retire a government servant, the entire record of service, particularly, in the last period of service is required to be closely scrutinized and the power would be reasonably exercised as observed in State Bank of India versus Kashinth Kher (JT at p.578 para 15)". 13. While opposing the writ petition, it is urged on behalf of the respondents that the petitioner was compulsorily retired under Rule 65(1)(b) of The Maharashtra Civil Services (Pension) Rules, 1982 in the public interest, as there was complaints of public at large against the petitioner. It is also contended that the colleagues of the petitioner were also not ready to work with the petitioner and several complaints were received against the petitioner of his own colleagues. It is also contended that when certain duties were assigned to the 12 petitioner, he has misused his powers while performing those duties, of which details are given in the affidavit in reply. It is also contended that the petitioner was habitual in lodging complaints and making allegations against the staff and others, not only to the higher authorities of respondent no.1 and 2, but to the authorities, who are noway concern with the administration of respondent no.1 and 2. Petitioner is a person of quarrelsome nature and hence by passing the resolution, order of compulsory retirement of the petitioner was passed by respondent no.1 and 2. In support of contention of the respondent no.1 and 2, reliance is placed on the observations in para no.12 and 13 in the matter of Namdeo Mahadeo Surjuse versus State of Maharashtra and others, reported in 2009(6) Bom.C.R. 779. The Hon'ble Apex Court way back in the year 1992 in a case of (Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another)1, reported in 1992 DGLS (soft) 167 : A.I.R. 1992 S.C. 1020 pointed out by learned AGP has observed regarding compulsory retirement in paragraph no.32 to that effect : "32. The following principles emerge from the above discussion : (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a 13 Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an Appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide, or (b) that it is based on no evidence, or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material in short; if it is found to be a perverse order. (iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it un-communicated adverse remarks were also 14 taken into consideration. That circumstance by itself can not be a basis for interference. Interference is permissible only on the grounds mentioned in (iii) above. This object has been discussed in paras 29 to 31 above (emphasis supplied by this Court) 13. While in another decision pointed out by learned AGP in the case of (State of Gujrath Vs.Umedbhai M.Patel)2, 2001 DGLS (Soft) 366 : 2001(3) S.C.C.314 the Hon'ble Apex Court observed thus in paragraph no.11 : The law relating to compulsory retirement has been crystallized 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 un-communicated entries in the confidential 15 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, (emphasis supplied by this Court) (underline is mine, emphasis supplied) It is urged on behalf of the respondent no.1 and 2 that considering the observations in the case of Namdeo Versus State of Maharashtra (cited supra), it is not necessary to hear the petitioner before passing the order of compulsory retirement, as it is not a stigma on the concerned employee. This order is passed on the subjective satisfaction of the members of respondent no.1 and 2 who have passed this order after perusal of the entire record of the petitioner. 14. Before considering these rival submissions, we have to consider the observations of the Apex Court in the matter of Prabodh Sagar Versus Punjab State Electricity Board and others, reported in (2000) 5 Supreme Court Cases 630, wherein it is held that "Malice" means and implies spite or ill-will, which is a question of fact. There can not be any set of guidelines for proving the malafides, but it has 16 to be ascertained from the facts and record of the case. Mere avernments of malafides is not enough, but it is to be supported by facts and the Court is required to scan those facts while coming to its own conclusion. It is also observed that when an employee is ordered to be retired compulsorily, there shall be subjective satisfaction that the services of the employer are not required in the public interest, and it is to be scanned in the light of the Annual Confidential Report or record maintained by the employer. 14. From the record made available to us, it is clear that inspite of specific order dated 03/09/2010, Annual Confidential Reports of 5 years, preceding to the order of compulsory retirement of the petitioner are not made available before us. It revealed that, either the Annual Confidential Reports are not maintained or there is nothing adverse against the petitioner in the said Annual Confidential Reports, hence they are deliberately not produced before us, but the fact remains that the Annual Confidential Reports of the petitioner are not placed before us for our observation. It is clear from Resolution No.23 dated 12/02/2004 as well as resolution no.29 dated 29/07/2004 that the copies of these resolutions were not supplied to the petitioner as demanded by him. These 2 resolutions also do not disclose that the Annual Confidential Reports of the petitioner were placed before the respondent no.1 and 2 and the others, when these resolutions were passed. In absence of Annual Confidential Reports of the petitioner placed on record, it is very difficult to gather whether those Annual Confidential Reports disclose 17 any adverse entries against the petitioner. From the underlined portion of (iii) of paragraph 32 , discussed in para no.12 of this judgment, passed in the matter of Sukhdeo versus Commissioner of Amravati, it is observed that perusal of the confidential report, there is subjective satisfaction of the employer that in the public interest, further services of the employee require to be terminated. It is observed in para no.(iii), (iv) and (v), paragraph 12 of this judgment, in the matter of Sukhdeo versus Commissioner of Amravati, Division Amravati that adverse entries made in the confidential report shall be taken note of and be given due weightage in passing such order and Even un-communicated entries in the confidential record can also be taken into consideration. But for that purpose, scanning of the confidential reports is necessary. In the case in hand, as the Annual Confidential Reports are not made available to us, nor they discussed in the resolutions impugned, it is not possible to conclude that before passing the said resolutions, confidential reports of the petitioner were placed before the Committee, and the Committee had an occasion to go through the confidential record of the petitioner and after subjective satisfaction of the Committee, the impugned resolutions were passed. It is to be noted that in un-ambiguous terms, in Resolution no.23 dated 12/02/2004, it is observed by the respondent