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2021 DIGILAW 1263 (GUJ)

GUJARAT HOUSING BOARD v. D. M. PATEL

2021-12-22

N.V.ANJARIA, SANDEEP N.BHATT

body2021
JUDGMENT : N.V. ANJARIA, J. 1. Heard learned advocate Mr. Y.N. Ravani for the appellant and learned advocate Mr. Dipak Dave for the respondent. 2. This Letters Patent Appeal under Clause 15 of the Latent Appeal is directed against judgment dated 8.9.2011 whereby learned Single Judge allowed the Special Civil Application of respondent herein-original petitioner. Order dated 11.1.2001 passed by respondent came to be set aside and the respondents were directed to give all consequential benefits to the petitioner within time bound period. 3. What was prayed in the Special Civil Application was to set aside order dated 11.1.2001 whereby the petitioner was ordered to be retired premature. It was prayed to declare the said order of compulsory retirement to be illegal and reinstate the petitioner with full backwages and continuity of service. 3.1 The petitioner joined the services as Junior Assistant in the appellant Gujarat Housing Board in July, 1978. In August, 1996. Pending the criminal proceedings and the departmental inquiry, the petitioner came to be suspended for alleged poor construction which he supervised. The charge-sheet was issued and departmental inquiry on the charge of poor quality construction work was initiated. It was the grievance of the petitioner that in respect of the incident of 1990, the charge-sheet was served in the year 1997, which was after seven years. On 11.1.2001, the petitioner was made to retire prematurely under Clause 161(1) of the Bombay Civil Services Rules. 3.2 It was stated that even though the departmental inquiry and the criminal trial in respect of the charges were continued, the petitioner was further ordered to be retired compulsorily on 11.1.2001. It was further averred that alongwith the petitioner, five employees named in paragraph No. 2 of the memorandum of the petition were suspended pursuant to the similar type of charges in relation to the same work. Three co-accused named Mr. N.K. Modi, Supervisor, Mr. A.K. Makwana, Work Assistant and Mr. Gheewala, Junior Assistant came to be reinstated by the authorities and their suspension was also revoked. They had been facing similar charges, stated the petitioner. It was contended that the petitioner was entitled to similar treatment, however, he was subjected to the order of compulsory retirement. 3.3 Contesting the petition by filing affidavit-in-reply the respondents mentioned that the charge-sheet dated 9.9.1997 in respect of the construction defects and for his negligent acts towards construction work. They had been facing similar charges, stated the petitioner. It was contended that the petitioner was entitled to similar treatment, however, he was subjected to the order of compulsory retirement. 3.3 Contesting the petition by filing affidavit-in-reply the respondents mentioned that the charge-sheet dated 9.9.1997 in respect of the construction defects and for his negligent acts towards construction work. It was stated that the conduct on part of the petitioner caused serious defects in the construction. It was thereafter stated that as per the policy resolution, the case of such employees who had attained fifty years or more were to be reviewed and after examining the confidential reports of such employees, order dated 11.1.2001 of retiring them prematurely was passed under the Rules, giving them the three months pay in lieu of notice. It was thereafter contended that the order of premature retirement by respondent authorities had nothing to do with departmental inquiry. It was averred that the premature retirement order was passed after considering the confidential report. 3.4 Precisely stated, the following averments were made in the affidavit: “I say that the order of premature retirement by the petitioner had not to do with the departmental inquiry. I say that the order of premature retirement has been passed after considering the confidential reports, pendency of departmental inquiry, matter of criminal case etc. I say that the overall assessment of the service record was made by the board and in the public interest opinion was formed to retire the petitioner prematurely.” 4. Assailing the judgment and order of learned Single Judge, it was submitted on behalf of the appellant that learned Single Judge failed to appreciate in right perspective with reference to the facts, the principles regarding the compulsory retirement. It was submitted on the basis of the grounds raised in the memorandum in the appeal that the departmental inquiry was initiated and charges levelled against the petitioner were serious, however, in the middle of the inquiry it was felt that instead of proceeding with the full-fledged departmental inquiry, it would be appropriate and beneficial to the respondent, as his confidential reports were clean, to compulsorily retire him in public interest. It was submitted that the order of compulsory retirement was neither a punishment nor amounted to stigma but because of mutual convenience and to the benefit of both the sides, the compulsory retirement was passed putting an end to the services of the respondent accordingly. It was sought to be submitted that the action was not to avoid the departmental inquiry but was taken in public interest. 4.1 On the other hand, learned advocate for the respondent-employee defended the order passed by learned Single Judge to reiterate that the order of compulsory retirement against the respondent was passed as a short cut to the departmental action and was punitive. 4.2 After considering the basic facts and the rival case, the learned Single Judge noticed the principles governing the compulsory retirement of a government employee on the basis of decisions in Baikunth Natha Das vs. Chief District Medical Officer, Baripada, (1992) 2 SCC 299 , Union of India vs. J.N. Sinha, (1970) 2 SCC 458 , Allahabad Bank Officers Association vs. Allahabad Bank, (1996) 4 SCC 504 and J.D. Srivastava vs. State of Madhya Pradesh, (1984) 2 SCC 8 , that an order of compulsory retirement is not a punishment and does not imply a strict stigma, nor does it suggest about misbehaviour of an employee, that the order is passed by the government upon forming the opinion that it is in the public interest to retire public servant compulsorily and that the principles of natural justice have no place in the context of the order to be passed retiring the government employee compulsorily. 4.2.1 In J.D. Srivastava (supra) the Supreme Court expressed to opine inter-alia that, if there is no adverse entry in the confidential record of the government servant, the order of compulsory retirement may not be supportable: “In the instant case, there were absolutely no adverse entries in respondent's confidential record. In the rejoinder filed in this Court also, nothing has been averred that the respondent's service record revealed any adverse entries. The respondent had success fully crossed the efficiency bar at the age of 50 as well 55. He was placed under suspension on 22.5.1986 pending disciplinary proceedings. The State Govt. had sufficient time to complete the enquiry against him but the enquiry was not completed within a reasonable time. Even the Review Committee did not recommend the compulsory retirement of the respondent. He was placed under suspension on 22.5.1986 pending disciplinary proceedings. The State Govt. had sufficient time to complete the enquiry against him but the enquiry was not completed within a reasonable time. Even the Review Committee did not recommend the compulsory retirement of the respondent. The respondent had only less than two years to retire from service. If the impugned order is viewed in the light of these facts, it could be said that the order of compulsory retirement was passed for extraneous reasons. As the authorities did not wait for the conclusion of the enquiry and decided to dispense with the services of the respondent merely on the basis of the allegations which had not been proved and in the absence of any adverse entries in his service record to support the order of compulsory retirement, we are of the view that the Division Bench was right in holding that the impugned order was liable to be set aside.” 4.2.2 Learned Single Judge also referred to the decision of the Division Bench of this Court in State of Gujarat vs. Umedbhai M. Patel, 2001 (3) GLR 2461 and rightly noticed the following position of law: “However, in the present case, as discussed hereinabove, the entire service record of the petitioner is unblemished. He remained on medical leave which was already sanctioned. There is no adverse remarks in the confidential reports for a period of last 10 years. The only allegation in the show cause notice is that the petitioner has not produced the certificate of the Medical Board and not reported for the duty at Gandhinagar after his leave is over. For the said alleged misconduct no departmental inquiry was held against him and relying up on the said material the order of compulsory retirement is passed by observing that in the public interest and in the interest of the Corporation such order is passed. For the said alleged misconduct no departmental inquiry was held against him and relying up on the said material the order of compulsory retirement is passed by observing that in the public interest and in the interest of the Corporation such order is passed. Thus, we are of the opinion that said order is arbitrary, perverse and is nothing but a shortcut adopted by the respondent Corporation and instead of holding a departmental inquiry, straight way the impugned order is passed which is in nature of penalty.” 4.3 The above position of law was noticed by learned Single Judge on the basis of the factual position in case of the petitioner ascertained from the stand of the respondents, by calling for necessary files regarding the taking of the impugned decision for perusal which inter-alia included the confidential reports of the petitioner and secondly the decision making process, namely what material was considered by the committee which led to passing of the compulsory retirement against the petitioner, as recorded in paragraph No. 10 of the order, reflected in the affidavit-in-reply which was quoted: “Today when the matter is taken up for hearing, Ms. Vyas has placed on record the details regarding the confidential-reports, however, no material has been placed or shown to me, which might have been taken into consideration by the Review Committee. The confidential reports of the writ applicant absolutely clean. The authority who recommended the case of the writ applicant to be taken in review for the purpose of considering whether he should be made to retire compulsorily, also stated that the record of the writ applicant was clean.” 4.4 The factual position was thus that, in the confidential reports of the petitioner there were no adverse entries. 5. In J.K. Rasania vs. Gujarat Housing Board, 2003 (1) GLR 466 , the employee holding the post of Executive Engineer was ordered to be compulsory retire before he continued the age of fifty years under the relevant regulations of Gujarat Housing Board Act, 1961. The satisfaction of the appointing authority to compulsory retire the employee was arrived at by drawing an inference that the integrity of the officer was doubtful. Such inference was drawn only from the facts that criminal case was filed against the officer. The court held that the order suffered from non-application of mind. The satisfaction of the appointing authority to compulsory retire the employee was arrived at by drawing an inference that the integrity of the officer was doubtful. Such inference was drawn only from the facts that criminal case was filed against the officer. The court held that the order suffered from non-application of mind. The court noted that the confidential report were not examined and there was nothing adverse in the confidential report. It was observed that the conclusion about the doubtful integrity was based on nothing but the pendency of the criminal case wherein the authority himself was the complainant. 5.1 In State of Gujarat vs. Suryakant Chunilal Shah, (1990) 1 SCC 599, the Supreme Court held that while the compulsory retirement could be ordered in public interest by weeding out dishonest, deadwood, inefficient of an employee, it could be assessed on the basis of the material on record of which confidential reports are of important input. The Supreme Court emphasized the significance of considering and reading the character roll entries or the adverse entries in the service record of the employee before the authority arrived at satisfaction to retire the employee compulsorily. 5.1.1 It was observed by Supreme Court: “The performance of a Govt. servant is reflected in the annual character roll entries and, therefore, one of the methods of discerning the efficiency, honesty of integrity of a Govt. servant is to look to his character roll entries for the whole tenure from the inception to the date on which decision for his compulsory retirement is taken. It is obvious that if the character roll is studded with adverse entries or the overall categorization of the employee is poor and there is material also to cast doubts upon his integrity, such a Govt. servant cannot be said to be efficient.” (Para 24) 5.1.2 The purpose of adverse entries in the record of the government servant was explained thus: “Purpose of adverse entries is primarily to forewarn the Govt. servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the Govt. servant cannot be said to be efficient.” (Para 24) 5.1.2 The purpose of adverse entries in the record of the government servant was explained thus: “Purpose of adverse entries is primarily to forewarn the Govt. servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the Govt. servant, to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance.” (Para 25) 5.2 In the case of Suryakant Chunilal Shah (supra) the Court found that there was hardly any material on which an opinion could have been formed that in public interest an employee could retire from service compulsorily. The character roll entries of two years were not available and there was no adverse entries in respect of the character of the respondent to his integrity. 5.2.1 It was pointedly stated: “Although there was no entry in his character roll that the respondent's integrity was doubtful, the Review Committee, on its own, probably on the basis of the FIRs lodged against the respondent, formed the opinion that the respondent was a person of doubtful integrity. The review Committee was constituted to assess the merits of the respondent on the basis of the character roll entries and other relevant material and to recommend whether it would be in public interest to compulsorily retire him from service or not. The Review Committee, after taking into consideration the character roll entries and noticing that there were no adverse entries and his integrity was, at no stage, doubted, proceeded, in excess of its jurisdiction, to form its own opinion with regard to respondent's integrity merely on the basis of the FIRs lodged against him.” (Para 26) 5.3 It is to be highlighted that one of the criteria to be applied for retiring the employee compulsorily is to consider the entire record of service and importance has to be attached to the performance during the later years on the basis of the record of the employee which would indeed be the entries in the confidential records and character rolls. In other words, when the service of the employee is not found to be useful in the general administration, for sake of public interest he can be retired after considering his service record and his confidential entries. The prime test is the performance of the employee emanating from his past service record especially the confidential remarks. 6. Reverting to the facts of the present case, allegations were levelled against the petitioner about defects in the construction of the houses which were built under the supervision of the respondent, who at the relevant time was an Assistant Engineer in the appellant Gujarat Housing Board. The charge-sheet was issued against the petitioner in the year 1997 and regular departmental inquiry was initiated to be conducted. The Inquiry Officer submitted its report on 8.10.2003. Two charges were levelled against the petitioner, one was in relation to the defects in the construction of the houses whereas the other was for negligent conduct on part of the respondent and his alleged collusion with the contractors which resulted into defective construction, according to the charge. Both these charges were proved and it was recorded by Inquiry Officer in his report that on account of the defects in the construction of the houses, the beneficiaries were made to suffer. It was also stated that the appellant Housing Board suffered in terms of money and reputation. The order of compulsory retirement was passed after report was submitted. 6.1 Now as stated above, it was an admitted fact that confidential reports of the respondent employee was clean. There were no adverse entries in his past record. Whether an employee is to be retained in service or to be retired compulsorily is judged from the consistent past record of an employee and his conduct revealed therefrom. Inquiry for this purpose is an inquiry to be spread over few years which would show that the employee has become deadwood, not liable to be retained in public service and is required to be retired in public interest. For applying this consideration and judging this aspect, the confidential record of a government servant is the best barometer. They would reflect decisively to the past performances of a government servant. The decision about retiring government employee compulsorily would base on the prime consideration of past record. For applying this consideration and judging this aspect, the confidential record of a government servant is the best barometer. They would reflect decisively to the past performances of a government servant. The decision about retiring government employee compulsorily would base on the prime consideration of past record. Without past record and the confidential entries, there cannot be assessment of consistent performance during the past years of an employee so as to arrive at a subjective satisfaction for subjecting the employee or government servant to the compulsorily retirement by the authority. 6.2 The respondent employee who is retired compulsorily, did not have any adverse entry in his service record. His service reports were clean as seen above. He is sought to be retired on the ground of public interest. The past attendant performances of the employee could not have been judged except on the basis of confidential reports. When a government employee is retired compulsorily during the time he has been facing departmental inquiry and in the wake when he has to face allegations of misconduct, retiring him compulsorily, notwithstanding the factum that his past record is clean would lead to inescapable inference that the basis of his compulsory retirement is for the allegations of misconduct. In such circumstances where the employee has the clean past record in terms of confidential reports and is retired during the pendency of the departmental inquiry, it is to be concluded that the order of compulsory retirement is acted upon as a shortcut to avoid the departmental inquiry. 6.3 Absence of adverse entries in the service record of the petitioner facing charge-sheet, would render the order of compulsory retirement punitive and the exercise leading to passing of order to be vitiated. The single set of allegation for which the departmental inquiry is held but not concluded or isolated incident of criminal case against the government employee, could not have been the basis for taking action of compulsory retirement when the past record of the employee is clean, on the ground that the employer wanted to weed out the dead wood. 6.4 For all the aforesaid reasons, the impugned order of compulsory retirement passed against the respondent employee is not sustained in the eye of law. The impugned order of learned Single Judge could be said to be eminently legal in allowing the petition and in quashing the order of compulsory retirement. 7. 6.4 For all the aforesaid reasons, the impugned order of compulsory retirement passed against the respondent employee is not sustained in the eye of law. The impugned order of learned Single Judge could be said to be eminently legal in allowing the petition and in quashing the order of compulsory retirement. 7. The challenge to the order of learned Single Judge in the present Letters Patent Appeal stands meritless. The appeal is dismissed.