M. M. Valand v. State of Gujarat — 1977 DIGILAW 51 (GUJ)

JUDGMENT : B.K. Mehta, J. By the order of this Court of Jan. 27, 1977, this matter was remanded to the trial Court for enabling the parties to adduce additional evidence for establishing that the order of premature retirement of the plaintiff was arbitrary and was lacking in bona fides, inasmuch as the relevant entries in the confidential reports alleging want of integrity on his part were never communicated to him and in any case were not made according to the instructions contained in the Government Resolution of the General Administration Department dated 8th March, 1969, and that these entries were in fact ignored by the Director of Prohibition and Excise when the plaintiff was given his due promotion immediately after the recording of the entries in the confidential reports. The trial court has after recording the evidence sent the papers back to this Court. 2. Now this evidence about the confidential reports is contained in the confidential file placed at Ex. 86 on the record of the trial Court. The plaintiff has gone in the box and stated that the entry made about the want of integrity in the year commencing from 1-1-1970 to 31-12-1970 was made on account of malice by his superior officers. No witness has been examined on behalf of the State Government before the trial Court after the remand. 3. Mr. Mehta, learned Advocate, appearing on behalf of the plaintiff, urged that the condition precedent for the exercise of the power of premature retirement has not been complied with and, therefore, the Court can go behind the order and examine, whether the opinion of the competent authority passing the said order was warranted in the facts and circumstances of the case or not. He also urged that the order is arbitrary inasmuch as the competent authority directing the premature retirement of the plaintiff has ignored two important facts, viz. He also urged that the order is arbitrary inasmuch as the competent authority directing the premature retirement of the plaintiff has ignored two important facts, viz. (1) the entries about the integrity in the confidential reports have not been made according to the specific instructions contained in para 12 (17) and (18) of the aforesaid Resolution directing, inter alia, about the quality of reporting as to the integrity of a Government servant concerned and the fact that the Director of Prohibition and Excise, who is the reviewing authority of these confidential reports, has himself granted officiating promotion to the plaintiff immediately after the entries were made about his integrity in his confidential reports. 4. Mr. Christi, the learned Assistant Government Pleader, appearing on behalf of the State Government sought to repel these contentions by urging that the Court is not entitled to go behind the order of compulsory retirement which has been made in the public interest and the opinion of the competent authority deciding about the compulsory retirement cannot be criticised by going behind it by looking to the confidential files. In submission of the learned Asstt. Govt. Pleader, the moment it is shown to the Court that the order of compulsory retirement is made in the public interest, the Court must accept that order and cannot make any attempt to fathom the minds of the competent authority by sifting the evidence to find out whether the opinion, and for that matter, the order, is warranted in the facts and circumstances of the case. In support of his contention the learned Assistant Government Pleader has relied on the two decisions of the Supreme Court in Mayengbam Radhamohan Singh v. Chief Commr. (Administrator) Manipur, AIR 1976 SC 2581 : (1976 Lab IC 1713) and Tara Singh v. State of Rajasthan, AIR 1975 SC 1487 : (1975 Lab IC 1046). 5. It is no doubt trite law that compulsory retirement is not a punishment since no stigma is attached as a consequence thereof (vide Tara Singh's case) (1975 Lab IC 1046) (SC) (supra). It is equally true that if the authority bona fide forms opinion to pass an order of retirement, the correctness of that opinion could not be challenged (vide Union of India v. Col. J. N. Sinha, AIR 1971 SC 40 : (1971 Lab IC 8). It is equally true that if the authority bona fide forms opinion to pass an order of retirement, the correctness of that opinion could not be challenged (vide Union of India v. Col. J. N. Sinha, AIR 1971 SC 40 : (1971 Lab IC 8). The learned Assistant Government Pleader, however, overlooked the fact that in order to prevent the Court from going behind the order of compulsory retirement, it should be established that the authority bona fide formed the opinion to pass the order. In Col. J. N. Singh's case, the Supreme Court laid down in terms that where an appropriate authority bona fide forms opinion that a Government servant be retired in the public interest, he can pass an order of compulsory retirement and that opinion cannot be challenged before the Court. The Supreme Court in the said case also ruled that the order of compulsory retirement can be challenged only on the ground that either the requisite opinion was not formed or that the order was passed arbitrarily or on collateral grounds. In other words, the condition precedent for making an order of compulsory retirement is the appropriate authority forming bona fide opinion to do so in the public interest. I do not think that the learned Assistant Government Pleader wanted to contend whether it is a bona fide exercise or not is a matter of ipse dixit for the concerned competent authority. It cannot be gainsaid that the confidential reports of the plaintiff, except for the year 1970, disclosed that the opinion of the reporting as well as reviewing authority in the matter of the integrity of the plaintiff was consistently in his favour. It was only in the year 1970 that a laconic entry is to be found saying that there is doubt about his honesty. Para 12 of the aforesaid Resolution in the matter of drawing confidential reports of the Government servants describes in details as to what should be the method of reporting. Sub-paragraphs (17) and (18) of para 12 are relevant for our purposes in this appeal. They provide as under: "(17) There is a column in the form of annual confidential report where the Reporting Officer has to comment on integrity. Sub-paragraphs (17) and (18) of para 12 are relevant for our purposes in this appeal. They provide as under: "(17) There is a column in the form of annual confidential report where the Reporting Officer has to comment on integrity. Under the present practice it is difficult to fill this column even when he has reasonable ground to be doubtful of the integrity of his subordinate in the absence of definite proof. It is usual to say something non-committal. (18) Reporting Officer should in the first place be required to give a definite opinion whether or not he considers the person concerned to be above board. If the Reporting Officer does not have enough information for forming a definite opinion, as may often be the case, he should say so but in no case should the column be left blank because of the inherent danger in doing so. In cases where the Reporting Officer is not in a position to make a positive report about integrity to ensure that the matter is not lost sight of, he should submit a separate report, if he has reasons to doubt the integrity of the Officer on whom he is reporting, stating the reasons for his suspicions. In such case, Reporting Officer should record in this column that a separate report has been made. The Department of Secretariat and the Heads of Departments who receive such secret reports should take suitable steps to find out the correctness or otherwise of the report." The State Government has not shown in the evidence that the entry about the integrity of the appellant was made according to these two sub-paragraphs and more particularly according to sub-para 18. The later sub-para, enjoins the Reporting Officer that he should not shirk the responsibility of recording a definite opinion about the integrity of a Government servant with whom he is concerned. But in cases where the Reporting Officer is not in a position to make a positive report about the integrity, he is required to submit a separate report if he has reasons to doubt the integrity of the Officer on whom he is reporting, stating the reasons for his suspicion. But in cases where the Reporting Officer is not in a position to make a positive report about the integrity, he is required to submit a separate report if he has reasons to doubt the integrity of the Officer on whom he is reporting, stating the reasons for his suspicion. In such cases, the Reporting Officer is placed under an obligation to record in this column that a separate report has been made and the Department of Secretariat and the Heads of the Department are directed on receipt of such secret report to take suitable steps to find out the correctness or otherwise of the report. Now, it is an admitted position that neither the Reporting Officer nor the Reviewing Officer has acted according to these specific directions. It is necessary to bear in mind the rationale underlying these detailed instructions contained in sub-paras (17) and (18). The Reporting Officer is placed under an obligation to make a definite and firm report in the matter of the integrity. In cases of doubt, he should not make any definite entry in the relevant columns, but make a separate report stating his reasons for his opinion and the Heads of the Departments are required to take suitable steps to find out the correctness or otherwise of such report. The rationale is too obvious that the Government servant may not on mere suspicion be penalised and at the same time he may not escape the consequences of his dubious conduct if there are suspicious circumstances to indicate the same. These instructions, in my opinion, are healthy checks on the Government servants concerned as well as on the Reporting and Reviewing authorities. As stated above, since these instructions have not been complied with, the effect is that there are no entries at all and, if any, they should be ignored (vide decision of a Division Bench consisting of J. B. Mehta & T. U. Mehta JJ. in Letters Patent Appeal No. 290 of 1974 decided on 26-3-1976 (Guj) : Per J. B. Mehta J.). It is also important to note that the Director of Prohibition and Excise, who is the reviewing authority so far as the plaintiff-appellant is concerned has himself ignored this entry made in the confidential report of the plaintiff and gave him promotion to officiate as Inspector of Prohibition and Excise. It is also important to note that the Director of Prohibition and Excise, who is the reviewing authority so far as the plaintiff-appellant is concerned has himself ignored this entry made in the confidential report of the plaintiff and gave him promotion to officiate as Inspector of Prohibition and Excise. This promotion was given to the plaintiff on 21st Sept., 1971. The report for the period 1-1-1970 to 31-12-1970 where there is an entry about the doubtful integrity of the plaintiff had been made on 5th March, 1971. It is, therefore, obvious that the Director of Prohibition and Excise had given promotion to the plaintiff after this entry had been made. The only inference, which I can draw from these established facts is that even the Director of Prohibition and Excise, who was the Reviewing authority himself ignored this entry and granted officiating promotion to the plaintiff, because. he must have found that there was no material to support this entry. It should also be noted that for the immediate next succeeding period from Jan. 1971 to Aug. 1971 the integrity column records that there was nothing adverse against the plaintiff and in the next succeeding period from Sept. 1971 to Dec. 1971 also the positive entry has been made that no complaints have been received about his integrity. Mr. Mehta was, therefore, justified in urging that the condition precedent for exercise of the right of premature retirement namely bona fide forming of opinion was not there inasmuch as it clearly appears that the order has been made in a callously indifferent manner. In any case, it is arbitrary inasmuch as the competent authority had ignored the three important facts, namely, (1) the entry about the integrity having not been made substantially according to the instructions contained in the Government Resolution; (2) the fact of ignoring the said entry when the plaintiff was given promotion immediately after that entry, and (3) consistent good reports about his integrity prior to the solitary period of 1970 and for the period immediately succeeding thereto. In that view of the matter Mr. Mehta was justified in urging that this Court must look behind this order and hold that the order is bad in law and void ab initio. I am of the opinion that Mr. Mehta was on firm ground in making this appeal to the Court. 6. In that view of the matter Mr. Mehta was justified in urging that this Court must look behind this order and hold that the order is bad in law and void ab initio. I am of the opinion that Mr. Mehta was on firm ground in making this appeal to the Court. 6. The result is that this appeal is allowed and the impugned order of premature retirement of the appellant-plaintiff is quashed and set aside as the condition precedent in exercise thereof has not been complied with and it is arbitrary. Consequential declaration is also required to be granted to the appellant-plaintiff that as a consequence of the order of this Court for quashing and setting aside the order he should be treated as if he was all along in the services of the Government. This appeal is accordingly allowed and the judgment and order of the City Civil Judge under appeal are set aside and the impugned order of premature retirement is quashed and set aside and the declaration as stated above is granted. Decree is to be drawn accordingly with costs of this appeal. Appeal allowed.