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2015 DIGILAW 540 (GUJ)

Rajiv M. Shanbhag v. State of Gujarat

2015-05-04

A.G.URAIZEE, K.S.JHAVERI

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JUDGMENT : K.S. Jhaveri, J. We have heard Mr. Shalin Mehta, learned Senior Counsel appearing for the appellants and Mr. Prakash Jani, learned Additional Advocate General appearing for the respondents. 2. This intra-court Letters Patent Appeal has been filed challenging the judgment and order dated 28.12.2012 passed by the learned Single Judge in Special Civil Application No. 430 of 2011 whereby the learned Single Judge has dismissed the writ petition. 3. The appellant was appointed as Deputy Engineer in the year 1980 and thereafter was promoted to the post of Executive Engineer in the year 1983. In the year 1993 departmental inquiries were initiated for acts of alleged misconduct ranging from very minor irregularities or negligence and he was awarded punishment of stoppage of increment for a period ranging from three months to two years without future effect in all cases. Thereafter on 03.01.2011 the respondents passed order whereby premature retirement of the appellant was directed after he attained the age of 50 years under rule 10(4)(a)(i) of the Gujarat Civil Services (Pension) Rules, 2002 with effect from the date of the receipt of the order by the appellant. Being aggrieved by the same, the appellant preferred the captioned writ petition which was dismissed by the learned Single Judge. Hence the present appeal is filed assailing the judgment and order passed by the learned Single Judge. 4. Mr. Shalin Mehta, learned Senior Counsel appearing for the appellant submitted that the learned Single Judge erred in law in reaching the conclusion that 'the Government did have power to order premature retirement of the petitioner in exercise of power under Rule 10(4) of the Pension Rules, 2002 and further that 'the consideration of sixteen departmental inquiries wherein the appellant was found guilty and was punished could not be termed as irrelevant or extraneous material to arrive at a satisfaction about discontinuance of service of the petitioner in public interest'. 4.1 Mr. Mehta contended that the Government of Gujarat has clearly indicated in the departmental circular dated 12.02.2004 that while deciding the premature retirement of an officer, last ten years' confidential reports, inquiry, physical and mental condition to perform the duties are the only criteria to be followed. He submitted that the learned Single Judge failed to appreciate that the recommendation of the Review Committee is based solely on the sixteen departmental minor penalties imposed on the appellant in the far past. He submitted that the learned Single Judge failed to appreciate that the recommendation of the Review Committee is based solely on the sixteen departmental minor penalties imposed on the appellant in the far past. 4.2 Mr. Mehta submitted that when there are special Rules for officers working in the Engineering cadre, the general powers of the Government cannot be invoked to order premature retirement. He submitted that there is no material on record based on which the respondents could have ordered premature retirement of the appellant. 5. Mr. Prakash Jani, learned AAG appearing for the respondent State submitted that the learned Single Judge has rightly arrived at the conclusion that the departmental inquiries where the appellant was found guilty and for which he was punished were rightly taken into consideration by the Government and the same could not have been excluded by terming it as irrelevant or extraneous material. He submitted that the Committee has considered the entire service record of the appellant including his confidential reports for the last ten years and after a thoughtful consideration the Committee recommended to retire the appellant from service in public interest. He submitted that the impugned judgment and order having passed in accordance with law does not call for any interference by this Court. 6. The learned Single Judge by way of the impugned judgment and order in the writ petition has observed as under: "14. I am unable to accept the above contention of learned senior counsel for the petitioner for more than one reasons. Firstly, the merits of those departmental inquiries or the punishment order passed by the Government in each departmental inquiry is not the subject matter of this petition. The only point which needs consideration by this Court is as to whether consideration by the Government of those sixteen departmental inquiries, to arrive at its satisfaction about continuance or otherwise of the petitioner on the post of Superintending Engineer in public interest, can be termed as extraneous factor or not. The only point which needs consideration by this Court is as to whether consideration by the Government of those sixteen departmental inquiries, to arrive at its satisfaction about continuance or otherwise of the petitioner on the post of Superintending Engineer in public interest, can be termed as extraneous factor or not. In my view, when Government is to take decision about premature retirement of some officer from Government service, the entire service record has to be taken into consideration and, over and above entire in the annual confidential reports, if proved misconduct of an officer is taken into consideration by the Government, the same cannot be termed as extraneous material, vitiating the decision making process or the ultimate decision of ordering premature retirement of the concerned officer, which may warrant interference by this Court while exercising the powers under Article 226 of the Constitution of India. In this regard, it is further noted that exercise of powers by Government in such cases is guided by the Government circulars. Specific reference is made by the learned Advocate General in this regard to Circulars dated 12.02.2004, 28.07.1987 and 12.01.1999. If the circular dated 12.02.2004 is taken into consideration, it is clear that five different statements are prescribed by the Government, the details of each shall be taken into consideration by the Committee while forming its opinion. Statement-III thereof deals with concluded departmental inquiries. Thus, the concluded departmental inquiries could not have been termed as extraneous material as held above and so is also the policy of the Government. It also reveals that in all cases, concluded departmental inquiries are taken into consideration by the Government and it is not that the petitioner is singled out by taking such material into consideration. Thus, I find that the departmental inquiries, where the petitioner was found guilty and for which he was punished, were rightly taken into consideration by the Government and the same could not have been excluded by terming it as irrelevant or extraneous material. 15. Thus, I find that the departmental inquiries, where the petitioner was found guilty and for which he was punished, were rightly taken into consideration by the Government and the same could not have been excluded by terming it as irrelevant or extraneous material. 15. In view of what is recorded above, I find that the Government did have power to order premature retirement of the petitioner in exercise of powers under Rule 10(4) of the Pension Rules, 2002 and further that, the consideration of sixteen departmental inquiries, wherein the petitioner was found guilty and was punished, could not be termed as irrelevant or extraneous material to arrive at a satisfaction about discontinuance of service of the petitioner in public interest. The other aspect which needs to be seen is as to whether the decision of the Committee, or in turn the order of the Government is tainted by any other illegality which may require interference of this Court in exercising the powers under Article 226 of the Constitution of India. It is not the case of the petitioner that the impugned decision is malafide exercise of powers by the Government. 16. Learned counsel for the petitioner also contended that for the proved misconduct, the punishment is already imposed by the Government and therefore, now to say at this stage that since the petitioner was punished at the relevant time for the proved misconduct, now the petitioner is ordered to retire prematurely, would amount to double jeopardy and therefore, the same be not allowed. It is further contended by learned counsel for the petitioner that retiring the petitioner prematurely is a short-cut which is resorted to by the Government and on that count also the impugned decision is required to be set aside. To support this contention, it is indicated that in all, nineteen departmental inquiries were initiated against the petitioner, of which, in three departmental inquiries, petitioner was exonerated and in sixteen departmental inquiries, punishment was imposed. 17. So far the above contention of double jeopardy is concerned, the same needs to be rejected. An officer cannot be heard to contend that he might have been punished sixteen times, but when the Government is to take decision as to whether it would be in public interest to continue him in service or not, those punishments ought not to have been taken into consideration. An officer cannot be heard to contend that he might have been punished sixteen times, but when the Government is to take decision as to whether it would be in public interest to continue him in service or not, those punishments ought not to have been taken into consideration. In my view, whether an officer is habitual of committing misconduct or not, is a relevant consideration while taking decision about his continuance or otherwise, in service, in public interest and therefore, it cannot be said that the impugned decision would have effect of double jeopardy to the petitioner. Therefore, the contention of double jeopardy is rejected. 18. So far the argument of short-cut of departmental inquiries is concerned, factually it does not have basis, since it is not that some departmental inquiries were pending and Government did not want to go through the entire process and as a short-cut to those pending departmental inquiries, the impugned order is passed. It is factually undisputed position that what is taken into consideration is proved misconduct only and neither adverse entire are taken into consideration since it is not there, nor any pending departmental inquiry is taken into consideration, since even that was not there. In this regard it is to be noted that, even according to learned counsel for the petitioner, out of nineteen departmental inquiries, in three departmental inquiries, the petitioner was exonerated and in sixteen departmental inquiries petitioner was punished and, thus, there is no pending departmental inquiry from the view point of even the petitioner and therefore, even this contention needs to be rejected and is rejected." 7. We are not inclined to accept the contention raised by the learned advocate for the appellant except the contention of procedure to be followed in case of premature retirement not being followed. Therefore the decision of premature retirement is required to be quashed and set aside as no opportunity was given to the appellant to justify his case. Since the appellant has already attained the age of superannuation we are of the opinion that it would be in the interest of justice if he tenders a formal application for voluntary retirement as on the date of premature retirement. If the appellant makes such an application, the same shall be accepted by the respondents as voluntary retirement and he shall be paid his dues accordingly immediately. 8. If the appellant makes such an application, the same shall be accepted by the respondents as voluntary retirement and he shall be paid his dues accordingly immediately. 8. With the aforesaid directions, appeal is partly allowed. It shall be open to the appellant to claim interest on the delayed payment from the State Government which shall be considered by the respondents in accordance with law. Appeal partly allowed.