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2005 DIGILAW 97 (GUJ)

STATE OF GUJARAT v. NARENDRAKUMAR V. PARIKH

2005-02-17

R.M.DOSHIT, S.R.BRAHMBHATT

body2005
R. M. DOSHIT, J. ( 1 ) THE appellant - State of Gujarat has preferred the present Appeal under clause 15 of the Letters Patent and has challenged the judgment and order dated 18th January, 1999 passed by the learned Single Judge in Special Civil Application No. 5036/1991. ( 2 ) THE respondent then a Social Welfare Officer (Training) was, by order dated 19th June, 1991, compulsorily retired from service in exercise of power conferred by clause (aa) (i) (1) of Rule 161 (1) of the Bombay Civil Services Rules, 1959 (hereinafter referred to as "the Rules" ). ( 3 ) FEELING aggrieved, the respondent preferred the above Special Civil Application No. 5036/1991 under Article 311 of the Constitution. The learned Single Judge examined the records and was pleased to hold that, ". . . It is, therefore, clear that the inquiry proceedings were short circuited and the charges, which were subject matter of the inquiry, were made use of by the Committee, which considered the petitioners case for compulsory retirement and it can not be said that these charges did not weigh with the Committee in arriving at the recommendations for his compulsory retirement. " As a result the learned Single Judge was pleased to set aside the impugned order of compulsory retirement and to hold that the respondent shall be entitled to all consequential benefits till the date of his retirement on attaining the age of superannuation and the retiral benefits as if the impugned order dated 19th June, 1991 had never been made against the respondent. ( 4 ) MR. DESAI has produced the original records for perusal by the Court. He has submitted that the order of compulsory retirement of the respondent was made on the basis of the recommendations made by the Review Committee. The Review Committee had before it the entire service record of the respondent. He has submitted that a bare perusal of the service record would justify his compulsory retirement. He has submitted that undoubtedly a departmental proceeding was pending against the respondent. However, irrespective of the said departmental proceeding the service record of the respondent was far from being satisfactory. He has submitted that for several years there were adverse entries made in the service record of the respondent. The said adverse entries were communicated to the respondent. He has submitted that undoubtedly a departmental proceeding was pending against the respondent. However, irrespective of the said departmental proceeding the service record of the respondent was far from being satisfactory. He has submitted that for several years there were adverse entries made in the service record of the respondent. The said adverse entries were communicated to the respondent. The representations made by the respondent in respect of such adverse entries were also rejected. Considering the overall service record of the respondent, the Review Committee recommended retirement of the respondent in public interest. The subjective satisfaction recorded by the Review Committee cannot be said to be vitiated by malafide. Nor the Committee can be said to have taken into consideration extraneous material. In absence of lack of bonafide on the part of the Committee, the subjective satisfaction arrived at by the Committee could not have been interfered with by the learned Single Judge exercising power of judicial review under Article 226 of the Constitution of India. He has submitted that the learned Single Judge has categorically rejected the plea of lack of bonafide raised by the respondent. Having rejected the plea of lack of bonafide, the learned Single Judge had no power or authority to sit in appeal over the decision of the competent authority and to hold that the order of compulsory retirement was made with a view to circumventing the requirement of holding disciplinary proceeding. Mr. Desai has submitted that it is the overall service record of the respondent which is relevant. In the present case, it cannot be said that the order of compulsory retirement was made on the basis of the pending disciplinary proceeding alone and that the rest of the service record did not warrant such compulsory retirement in the interest of public. In support of his contention, Mr. Desai has relied upon the judgments of the Honble Supreme Court in the matters of State of U. P. and another v/s. Abhai Kishore Masta [ (1995)1 SCC 336 ]; of State of Gujarat v/s. Umedbhai M. Patel [ (2001)3 SCC 314 ]; of Jugal Chandra Saikia v/s. State of Assam and another [ (2003)4 SCC 59 ]; and of Nawal Singh v/s. State of U. P. and another [ (2003)8 SCC 117 ]. ( 5 ) LEARNED advocate Mr. Mishra has contested the Appeal and has supported the judgment of the learned Single Judge. ( 5 ) LEARNED advocate Mr. Mishra has contested the Appeal and has supported the judgment of the learned Single Judge. He has submitted that in exercise of power of judicial review the learned Single Judge had examined the service records of the respondent and has rightly recorded that the order of compulsory retirement was made with a view to circumventing the requirement of holding disciplinary proceeding. He has submitted that for the flimsy charge made against the respondent as far back as in the year 1988 the disciplinary proceeding was not proceeded with until the date of the judgment in the year 1999. Thus, it was evident that the State Government had no intention to proceed further with the disciplinary proceeding. The impugned order of compulsory retirement was indeed made, as held by the learned Single Judge, to short-circuit the disciplinary proceeding. Mr. Mishra has vehemently argued that the fact that the disciplinary proceeding which was initiated as far back as in the year 1988 was not proceeded further until the respondent was compulsorily retired from service and for long thereafter i. e. till the date the learned Single Judge heard the writ petition, was in itself an indication that the State had no intention to conduct and complete the departmental proceeding. Instead, the State took the shelter of power of compulsory retirement conferred by the aforesaid Rule 161 (1) (aa) (i) (1) of the Rules. Lack of bonafide is in-built in such an exercise of power. Learned Single Judge has, therefore, rightly interfered in the matter and set-aside the order of compulsory retirement. In support of his contention Mr. Mishra has relied upon the above referred judgment in the matter of State of U. P. and another [ (1995)1 SCC 336 ]. ( 6 ) RULE 161 of the Rules provides for compulsory retirement. Sub-rule (1) thereof provides, inter alia, for the date of compulsory retirement of a Government servant to be the age of 58 years. Mishra has relied upon the above referred judgment in the matter of State of U. P. and another [ (1995)1 SCC 336 ]. ( 6 ) RULE 161 of the Rules provides for compulsory retirement. Sub-rule (1) thereof provides, inter alia, for the date of compulsory retirement of a Government servant to be the age of 58 years. Clause (aa) thereof empowers the appointing authority, if he is of the opinion that it is in the public interest to do so, to retire a Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice, on or after the date on which he attains the age of 50 years or 55 years, as the case may be. It is this power conferred by sub-clause (i) (1) of clause (aa) of sub-rule (1) of Rule 161 of the Rules in exercise of which the respondent was ordered to be retired from service after he attained the age of 50 years. ( 7 ) THE law pertaining to compulsory retirement of a Government servant in the interest of public has been well-settled. In the matter of State of U. P. and another (supra), the said law has been reiterated. It is observed that, ". . . It cannot be said as a matter of law nor can it be stated as an invariable rule, that any and every order of compulsory retirement made under Fundamental Rule 56 (j) (or other provision corresponding thereto) during the pendency of disciplinary proceedings is necessarily penal. It may be or may not be. It is a matter to be decided on a verification of the relevant record or the material on which the order is based. " Once again the aforesaid settled law has been succinctly stated by the Honble Court as under in the matter of State of Gujarat (supra) :" (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. (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. " ( 8 ) THE said law has been reiterated with approval in the matter of Jugal Chandra Saikia (supra) and in the matter of Nawal Singh (supra ). In the matter of Nawal Singh (supra), it has been observed that, ". . . Further it is impossible to prove by positive evidence the basis for doubting the integrity of the judicial officer. In the present-day system, reliance is required to be placed on the opinion of the higher officer who had the opportunity to watch the performance of the officer concerned from close quarters and formation of his opinion with regard to the overall reputation enjoyed by the officer concerned would be the basis. " ( 9 ) ON perusal of the record, it appears that the respondent attained the age of 50 years in the month of March, 1989. His case for scrutiny whether or not to retire him in the public interest on attaining the age of 50 years was placed before the Review Committee. The Review Committee considered the case of the respondent and such other officers who had attained or would attain the age of 50 years in the year 1989. ( 10 ) THE Committee considered the service record of the respondent. The Committee made a note of the fact that for the years 1982-83, 1983-84, 1984-85, 1985-86 and 1988-89 there were adverse entries in the service record of the respondent; that there was a disciplinary proceeding pending against the respondent. ( 10 ) THE Committee considered the service record of the respondent. The Committee made a note of the fact that for the years 1982-83, 1983-84, 1984-85, 1985-86 and 1988-89 there were adverse entries in the service record of the respondent; that there was a disciplinary proceeding pending against the respondent. It was noted that since his appointment in Class-II post by direct selection in the year 1981, the respondent had not been confirmed in service. In other words, his period of probation was not yet terminated. He had manipulated the service record and had tampered with the official record. Though the period of probation was not terminated, he had withdrawn annual increments; that he had obtained loan by making false representation for which the loan amount and the penal interest was required to be recovered from him; that his performance was recorded to be very poor and that he was not suitable for the executive post; that he lacked initiative, the sense of responsibility and the administrative capacity. He was reported to be an officer who was required to be watched; that his conduct in paying grant to Bamboo Workers Union was subject matter of enquiry by Anti Corruption Bureau; that he had made errors in computation of grant payable to the hostels and balwadi, for which he was reprimanded. ( 11 ) CONSIDERING the above service record and the factum of pending disciplinary proceeding, the Review Committee, in its meeting held on 31st May, 1989, opined that the respondent be compulsorily retired in exercise of power conferred by Rule 161 (1) (aa) (i) (1) of the Rules. The recommendation made by the Review Committee was approved by the concerned head of the department and the State Government in its General Administration Department. Pursuant to such approval the impugned order of compulsory retirement came to be made as aforesaid. ( 12 ) IN view of the above facts, we are of the opinion that at no point of time the respondents service was found to be satisfactory so as to terminate the period of probation and to continue him for a longer period. His compulsory retirement after he attained the age of 50 years was but in the interest of public. His compulsory retirement after he attained the age of 50 years was but in the interest of public. The observation made by the learned Single Judge that the order of compulsory retirement was made with a view to short-circuiting the disciplinary proceeding does not seem to be justified in the background of the above facts. Besides, we are told that the disciplinary proceeding then pending against the respondent has now been completed. By order dated 14th May, 2001 the respondent has been visited with punishment of reduction in monthly pension by Rs. 500=00 for a period of 5 years. As recorded hereinabove, apart from the pending disciplinary proceeding the service record of the respondent indicated that he was an officer below par and was not suitable for Class-II post. His integrity too was doubtful and a disciplinary proceeding in the matter of his obtaining House Building Advance by misrepresentation was pending at the relevant time which has culminated into punishment as aforesaid. We are, therefore, of the opinion that the order of compulsory retirement made against the respondent was based on subjective satisfaction arrived at on the basis of the aforesaid service record of the respondent. The said decision was in consonance with Rule 161 (1) (aa) (i) (1) of the Rules. The same did not call for interference by the High Court in exercise of its power of judicial review. ( 13 ) FOR the aforesaid reasons the Appeal is allowed with cost. The impugned judgment and order dated 18th January, 1999 passed by the learned Single Judge is set-aside. The Special Civil Application No. 5036/1991 stands dismissed. .