Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 357 (GUJ)

State Of Gujarat v. L. D. Pandor

2024-02-20

N.V.ANJARIA, PRANAV TRIVEDI

body2024
JUDGMENT : N.V.ANJARIA, J. The State seeks to address a challenge to judgment and order dated 13.10.2016 of learned single Judge allowing the Special Civil Application, filed by the respondent – petitioner. 2. Whether learned single Judge was justified on facts and in law in setting aside the order dated 22.1.2004 passed by the respondent No.1- the Director General and the Inspector General of Police of compulsory retiring the petitioner, is the central issue to be considered by the court. 2.1 It is trite principle that government is permitted to resort to the mode of retiring government servant compulsorily in public interest, where the ultimate underlying object is to weedout the deadwood. Those employees who are deadwood or of doubtful integrity would be subjected to compulsorily retirement. 3. The respondent herein- original petitioner, having joined the services as Junior Clerk in the year 1975, came to be promoted as Senior Clerk, thereafter, also as Head Clerk upon passage of seven years and lastly, stood promoted as Office Superintendent in the same office in the year 2003. It was stated that when the petitioner completed fifty years, Rule 161 (1) of the Bombay Civil Services Rules, 1959 was invoked against the petitioner retiring him compulsorily. It was the said order which was called in question by filing the writ petition. 3.1 Justifying the action of retiring the petitioner compulsorily, in the affidavit-in-reply filed by the respondents it was contended that under Rule 161 of the Bombay Civil Services Rules, a government servant could be retired upon attaining the age of fifty to fifty-five years, if the government is satisfied that it is necessary to do so in public interest. It was further stated that after following Government Resolution dated 28.7.1987, the petitioner was subjected to compulsory retirement. It was stated that since three months pay was given to the petitioner, giving opportunity of hearing to him was not necessary. 3.2 It was sought to be highlighted that the petitioner was found in past remaining unauthorizedly absent and that the charge-sheet was issued on 18.11.2000 which followed by imposition of punishment of censure. It was also stated that the confidential reports of the petitioner were found to be average. Therefore, it was finally stated, the petitioner became liable to be retired compulsorily. It was also stated that the confidential reports of the petitioner were found to be average. Therefore, it was finally stated, the petitioner became liable to be retired compulsorily. 3.3 Learned single Judge while setting aside the order of compulsory retirement observed that the petitioner was given promotion to the post of Office Superintend. The aspect weighed with learned single Judge that this was the third promotion given to the petitioner during his service career and that he was found fit for promotion in the year 2000-2003 and therefore it was not possible to justify the order of compulsory retirement. 4. Learned Assistant Government Pleader Ms.Shruti Dhruve submitted that the aspects of certain absentism on part of the petitioner and his average confidential remarks were taken into account. Referring to the judgment of the Supreme Court in Rajasthan State Road Transport Corporation Vs. Babu Lal Jangir [ (2013) 10 SCC 551 ], it was submitted with vehemence that in considering the question whether any government employee could be compulsorily retired or not in public interest, the past record of the employee cannot be taken as washed-off. She submitted that it is the prerogative of the government to judge the public interest in retiring a government servant compulsorily. 4.1 In support of her submissions, learned Assistant Government Pleader also relied on another decision in Central Industrial Security Force Vs. Om Prakash [ (2022)5 SCC 100 ] by highlighting therein in para 5 thereof, to point out that in that case the writ petitioner was retired compulsorily after giving promotion. Yet another decision in Ram Murti Yadav Vs. the State Of Uttar Pradesh [ (2020) 1 SCC 801 ] was pressed into service in support of her submissions. 4.2 The reliance on the decision of the Supreme Court in Central Industrial Security Force (supra) by learned Assistant Government Pleader may be disposed of at the outset. On close consideration of the facts of the said judgment, it could be immediately noticed that the writ petitioner of the said case was awarded number of punishments prior to his promotion including illegal gratification from a transporter, which were serious in themselves. There were also other allegations of misconduct. On close consideration of the facts of the said judgment, it could be immediately noticed that the writ petitioner of the said case was awarded number of punishments prior to his promotion including illegal gratification from a transporter, which were serious in themselves. There were also other allegations of misconduct. The scales of such misconduct and punishment imposed weighed higher against the promotion by the court to hold that mere aspect of promotion could not be a good ground to urge when there were other serious misconduct including illegal gratification. 4.3 On the other hand, learned advocate Mr.Pujara supported the judgment and order of learned single Judge to submit that in the facts of the case not only three promotions were given to the petitioner, the measure of compulsory retirement was employed to avoid the departmental proceedings by way of shortcut. He relied on the latest decision of the Supreme Court in Captain Pramod Kumar Bajaj Vs. Union of India [2023 (3) SCALE 618], to highlight the principles which may govern in retiring government servant compulsorily under the relevant rules which was pressed by him by referring to para 38 and 39 of the judgment. 5. In State of Gujarat Vs. Umedbhai M. Patel [ (2001) 3 SCC 314 ], the Supreme Court delineated the basic principles which may be applied while resorting to the action of compulsory retiring the government servant, which reads thus, “The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus: (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. (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. (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.” (para 11) 5.1 Out of the above principles set out by the Apex Court, at least two apply to the facts of the case. The first is that the government servant is no longer useful to the general administration. When the petitioner herein was promoted thrice in his career, one could hardly come to a conclusion that he was no longer useful to the administration or that he had become deadwood. While underlining the said aspect in (i) above, it was further stated in (vi) and (vii) above that if the officer was given promotion despite adverse entries made in the confidential records, that is a fact in favour of the officer. This principle would apply to the facts involved in this case. The petitioner who was promoted three times cannot be treated to be a deadwood. 5.2 The principle emerges is that it is the entire record and its analysis needs to be considered and its aspects should be given weightage in arriving at a conclusion whether a government servant has become deadwood who could be retired on the ground of public interest compulsorily. The idea is to improve efficiency in the government administration to weed-out the persons who are of doubtful integrity or whose services are no longer useful which must guide the decision. 5.3 It is not only the above situation which emerges on facts in law, an attentive examination and analysis of the facts of the case, would suggests that the order of compulsory retirement was passed against the petitioner as a shortcut to holding of departmental inquiry which is indeed not permissible in law. 5.3 It is not only the above situation which emerges on facts in law, an attentive examination and analysis of the facts of the case, would suggests that the order of compulsory retirement was passed against the petitioner as a shortcut to holding of departmental inquiry which is indeed not permissible in law. 5.4 Learned single Judge duly highlighted the said aspect with reference to the decision in Umedbhai M. Patel (supra) by observing thus, in para 18, “I have no hesitation in coming to the conclusion that the impugned order is erroneous in law and is nothing but a shortcut adopted by the State to put an end to the services of the writ-applicant under the garb of compulsory retirement in public interest. Instead of holding departmental inquiry straightway the impugned order came to be passed which is in the nature of a punishment. This is exactly what the Division Bench has considered and explained in the case of Popatbhai Bhimabhai Sutreja Vs. Managing Director, Gujarat State Civil Supply Corporation Ltd. [ 2016 (3) GLR 2670 ].” 5.5 The aspect of three promotions to the petitioner could duly weigh with learned single Judge to come to conclusion that the petitioner could neither be viewed as deadwood nor an employee whose utility in service was lost. An action on part of the government in retiring a servant compulsorily by adopting it as a shortcut to the departmental inquiry is a stigma attached in disguise. It is to be emphasized, at the cost of repetition, that when in the year 2000-2003 the petitioner was found fit for promotion, he could not have been treated as deadwood to be subjected to the measure of compulsory retirement. 6. The approach adopted and view taken by learned single Judge could be said to be eminently just, proper and legal. No error could be booked in the impugned judgment and order of learned single Judge. The order of compulsory retirement against the petitioner is rightly set aside. 7. The present Letters Patent Appeal is meritless. The same is dismissed.