1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2566 OF 2001 Union of India, through ) Regional Director ) Employees State Insurance Corporation ) E.S.I.C.Bhawan, Lower Parel, ) Bombay ).Petitioner V/s. S.S.Kushwaha ) Officiating Upper Division Clerk ) in posting Section, ) Regional Office, ) Employees State Insurance Corporation ) Lower Parel, Panchdeep Bhavan, ) N.M.Joshi Marg, ) Bombay  400 013 ).Respondent Mr.Suresh Kumar, Advocate, for the petitioner Mr.Ramesh Ramamurthy, Advocate, for the respondent CORAM : P.B.MAJMUDAR & R.M.SAVANT, JJ. DATE : 16TH JULY, 2009 ORAL JUDGMENT ( PER R.M.SAVANT, J. ) . This Writ Petition filed under Article 226 of the Constitution of India challenges the Order of the Central Administrative Tribunal 2 ( Hereinafter referred to as CAT ), Mumbai Bench, Mumbai dated 26th July, 2001. By the said Order, the CAT allowed the Original Application No.426 of 1996 filed by the respondent herein and set aside the Order dated 26th March, 1996, compulsorily retiring the respondent from service. 2. The facts stated in brief are as under :- The respondent was appointed as Lower Division Clerk on a temporary basis in the Employees State Insurance Corporation. The services of the respondent were regularized on 1st February, 1968. It appears that on 23rd October, 1997, an F.I.R came to be lodged against the respondent. Pursuant to which the respondent was arrested by the Superintendent of Police, Thane. The respondent was in police custody for seven days. By an Order passed on the same date, the respondent was suspended in terms of Sub Rule (2) of Rule 10 of CCS ( CCA ) Rules, 1965. The suspension of the respondent was revoked on 13th 3 December, 1979. On 1st/2nd November, 1995, a Memo came to be issued to the respondent in which memo 76 Criminal cases which were pending against the respondent were mentioned. The respondent was called upon to submit the details of all the cases registered against him as also disclose any other case or cases which are filed against him and was also called upon to furnish copies of the Judgment, if passed in any case. The respondent was also informed that failure on his part to furnish the aforesaid information would result in necessary action being taken by the petitioner under the existing Rules. The said Memo dated 1st/2nd November, 1995, was replied to by the respondent on 10th November, 1995. It appears that the matter rested there. 3. On 8th January, 1996, a Meeting of the Review Committee was held for the purposes of reviewing the cases of employees under FR 56 (J) / 48 (i) (b) of CCS Pension Rules, 1972. The 4 petitioner's case was considered alongwith the cases of other employees. In the said Meeting of the Review Committee, a unanimous decision was taken to compulsorily retire the respondent from the service of the Corporation under Rule 48 of CCS Pension Rules 1972 read with Regulation 7(2) of ESIC ( Staff and Conditions of service ) Regulations, 1959. In accord with the said decision of the Review Committee, the respondent was compulsorily retired with effect from 28th May, 1996. The respondent challenged the said order of compulsory retirement in the CAT, Mumbai. The said order of compulsory retirement was challenged by the respondent inter alia on various grounds mentioned in the said Original Application. The petitioner herein justified the said decision of compulsorily retiring the respondent by taking a stand before the CAT that the decision arrived at by the Review Committee to compulsorily retire the respondent is not only based on the conviction of the respondent in case No.27924 of 1979 but it is 5 also based on a number of Criminal cases pending against the respondent. It was further the stand of the petitioner that even, if, one of the cases as mentioned in the list of the cases pending against the respondent was wrong, the order of compulsory retirement is still justified. It appears that before the CAT, it was revealed that there was no Criminal case being case No. 27924 of 1979 registered against the respondent and therefore, there was no conviction dated 24th December, 1979, against the respondent. The CAT came to a conclusion that what has weighed with the petitioner in passing the order of compulsory retirement is the conviction of the respondent in Criminal case No. 27924 of 1979 and since the said premise was an erroneous premise on the basis of which the order of compulsory retirement was passed against the respondent and since the said fact had solely weighed with the Review Committee, the CAT was of the view that the said order of compulsory retirement was not sustainable. The CAT was of the 6 view that since the factual substratum did not exist, the very basis of the order of compulsory retirement therefore vanishes. The CAT has also taken into consideration the fact that though 90 cases have been registered against the respondent, in none of the cases the respondent has been convicted till the date of passing of the order of compulsory retirement. 4. We have heard Mr.Suresh Kumar, the learned counsel for the petitioner and Mr.Ramesh Ramamurthy, the learned counsel for the respondent. Mr.Suresh Kumar, the learned counsel for the petitioner sought to justify the order of compulsory retirement on the ground that though the factual basis in the form of conviction in Criminal case No. 27924 of 1979 dated 24th December, 1979, did not exist, the learned counsel for the petitioner would contend that the fact remained that there were as many as 90 Criminal cases pending against the respondent. Therefore, even, 7 if the said conviction was not to be taken into consideration, the fact that there were 90 cases pending against the respondent cannot be lost sight of. Mr.Suresh Kumar, the learned counsel for the petitioner further contended that the Review Committee on a consideration of the said material has come to a conclusion that the respondent was required to be compulsorily retired. 5. Per contra, it is submitted by Mr.Ramesh Ramamurthy, the learned counsel for the respondent that the contention that a large number of cases were pending against the respondent is also erroneous, most of the cases according to Shri Ramesh Ramamurthy have been filed against workers for allegedly making bogus claims. Only in one case, out of the large number of cases the respondent is an accused. Insofar as the other cases are concerned, no process has been received by the respondent even till this date. The learned counsel submitted that the Review Committee having 8 proceeded on the basis of an alleged conviction of the respondent in Criminal case No. 27924 of 1979 dated 24th December, 1979, which factual basis did not exist had thereby taken into consideration a fact which did not exist whilst passing the order of compulsory retirement. The learned counsel further submitted that during the pendency of the above Writ Petition the respondent has retired in the year 2004 and therefore, the impugned order of the CAT does not call for interference at the hands of this Court under Article 226 of the Constitution of India. 6. We have considered the rival submissions. We have also perused the file which was produced for our perusal by Mr.Suresh Kumar, the learned counsel for the petitioner. A perusal of the file and the Minutes recorded of the Review Committee disclose that the sole ground on which the order of compulsory retirement has been passed against the respondent is his alleged conviction in Criminal 9 case No. 27924 of 1979 dated 24th December, 1979. All the employees whose cases were taken up for review except the respondent above named have been found fit to continue in service and it is only the respondent against whom the order of compulsory retirement came to be passed. It is, therefore, clear from a reading of the file that what has weighed with the Review Committee is the alleged conviction of the respondent in the said Criminal case. Since as mentioned above, the said factual basis does not exist as no Criminal case No. 27924 of 1979 was registered against the respondent, the order of compulsory retirement based on the said alleged conviction does not stand to scrutiny. 7. It is trite that an order of compulsory retirement is an order which can be passed by the employer whilst reviewing the cases of the employees in terms of the Regulations applicable for their continuation in service or can also be passed as and by way of punishment under the said 10 Regulations. In the instant case, since the order has been passed not on the basis of the over all assessment of the service record of the respondent but only on the basis of his alleged conviction in the said Criminal cases, the said order, in our view, would tantamount to the said order being passed as and by way of penalty. A useful reference in that behalf can be made to the Judgment of the Hon'ble Apex Court reported in (2009) 5 Supreme Court Cases 732 in the matter of NATIONAL AVIATION COMPANY OF INDIA LIMITED Versus S.M.K.KHAN wherein the Apex Court has drawn a distinction between compulsory retirement as and by way of punishment as distinguished from compulsory retirement for unsatisfactory service. Paragraph Nos.13 and 14 of the said report are material and are reproduced herein under :- 13. An order of compulsory retirement in pursuance of a rule/regulation which enables the competent authority to prematurely retire an employee, on the information of a bona fide opinion that continuation of the employee in service will not benefit the 11 institution or be in the interest of the institution (or will not be in public interest where the employee is a government servant), on review of the performance/service record of the employee, on the employee attaining the specified age or completing the specified period of service, is valid and not open to challenge. It is neither a punishment nor considered to be stigmatic. Where the compulsory retirement, is not by way of punishment for a misconduct, but is an action taken in pursuance of a valid condition of service enabling the employer to prepone the retirement, the action need not be preceded by any enquiry and the principles of natural justice have no application. 14. The unsatisfactory service of the employee which may include any persistent misconduct or inefficiency furnishes the background for taking a decision that the employee has become a dead wood and that he should be retired compulsorily. Such compulsory retirement is different and distinct from imposition of a punishment of compulsory retirement (or dismissal/removal) on a specific charge of misconduct, where the misconduct is the basis for the punishment. The difference is on account of two factors: firstly, the employee on account of completing a particular age or 12 number of years of service falls within the zone where his performance calls for assessment as to whether he is of continued utility to the employer or has become a dead wood or liability for the employer. Secondly, the record of service, which may include poor performance, unsatisfactory service or incidentally any recent conduct (which if separately considered may constitute a misconduct subject to punishment) when considered as a whole, leads the reviewing authority to the conclusion tha the employee in question is not fit to be continued in service and not of utility to the employer. Therefore, any incidental reference to unsatisfactory service, or any remarks in the context of explaining the reason for compulsory retirement under the relevant rule, in the letter of compulsory retirement will not be considered as stigmatic, even though read out of context, they may be capable of being construed as allegations of misconduct. 8. Considering the Judgment of the Apex Court mentioned above, in our view, the petitioner could not have passed the order of compulsory retirement assuming that it had taken into consideration a 13 large number of Criminal cases pending against the respondent. If the petitioner was concerned with the large number of Criminal cases pending against the respondent, it would have been open for the petitioner to proceed against the respondent by way of disciplinary proceedings under the Service Regulations but could not have passed the order of compulsory retirement on the said basis. More so, when the only fact which has weighed with the petitioner is the alleged conviction of the respondent. In our view, therefore, the order of the CAT does not suffer from any illegality or invalidity for this Court to interfere in its extraordinary jurisdiction under Article 226 of the Constitution of India. 9. Another aspect to be taken into consideration is that the respondent has reached the age of superannuation some time on 28th February, 2004, and therefore, the respondent would not be entitled to be reinstated in service. The 14 order of the CAT has also been stayed by this Court by way of interim relief. The question that begs an answer in the instant case is, as to what reliefs the respondent would therefore, be entitled to. It is well settled by the Judgments of the Apex Court as well as this Court that an employee as a matter of right is not entitled to backwages and the Court in its discretionary jurisdiction under Article 226 of the Constitution of India is entitled to mould the reliefs. Considering the facts and circumstances of the present case whilst confirming the order of the CAT, in our view, the following directions would serve the interest of justice. (i) Since the order of the CAT is confirmed, the respondent would be held to be notionally in service till his date of superannuation i.e. 28th February, 2004. (ii)The respondent would not be entitled to backwages from the order of compulsory retirement i.e 31st May, 1996, the date from which the order of compulsory retirement came into effect till 28th February, 2004. i.e. till the date of his superannuation. However, retiral 15 benefits including Pension, Provident Fund and Gratuity would be recomputed by the petitioner on the basis that the respondent had continued upto the date of his superannuation i.e. 28th February, 2004. (iii)Since the petitioner has already paid certain amounts namely Provident Fund, Gratuity to the respondent and the respondent is also being paid Pension. On recomputation in term of Clause (ii) above, the petitioner would pay the difference within a period of six months from date to the respondent. (iv)The impugned order is modified to the aforesaid extent. (v)The above Writ Petition is accordingly dismissed. Rule discharged. No order as to costs. ( R.M.SAVANT. J.) ( P.B.MAJMUDAR ) 16