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Judgment
Bhagwati Prasad, J.—This appeal is filed by the appellant being aggrieved by the order dated 10.8.1999 passed by learned Single Judge of
this Court in Special Civil Application No. 4641 of 1987 whereby the petition filed by the appellant is dismissed.
The case of the appellant is that he joined Government service as an Overseer in the year 1956. He was promoted as Deputy Executive
Engineer by order dated 28.12.1978. While serving as Deputy Executive Engineer, the appellant received adverse remarks, details of which have
been given in paragraph No. 4 of the petition filed by the appellant. Against such adverse remarks, he made representations. In relation to certain
adverse remarks, his representations were rejected and in relation to some adverse remarks, his representations were accepted. Thus, total of the
story of adverse remarks is that there remained certain adverse entries against the appellant in the form of adverse Confidential Report. The
appellant was also chargesheeted for certain incidents and those chargesheets culminated into inquiries. While the appellant was serving, an order
came to be passed on 28.4.1987 retiring the appellant compulsorily. The order of retiring the appellant is reproduced hereinbelow:
Government of Gujarat, Narmada Development Department, Order No. OSS/1485/27/E8, Sachivalaya, Gandhinagar.
Date the 28th April, 1987.
Order:
In accordance with the Clause (aa)(i)(1) of 161(1) of the B.C.S.R. 1959, as amended from time to time Shri C.M. Shah Deputy Executive
Engineer (Civil), Minor Irrigation Panchayat Sub-Division, Chotila, under the Superintending Engineer, Panchayat Irrigation Circle, Gandhinagar
shall retire from Government service at once in the interest of public service.
Shri C.M. Shah Deputy Executive Engineer (Civil) is hereby paid three months notice pay and allowances in lieu of the notice period as laid
down under Clause (aa)(1) of the above said rules.
The pending enquiries shall however be continued against him even after his retirement.
By order and in the name of the Governor of Gujarat.
Sd/- J.A. Pandya
Under Secretary to the Government of Gujarat
Narmada Development Department.
The aforesaid order was challenged before this Court. Learned Single Judge of this Court has found that merely because there were enquiries
pending against the appellant at the time when the order of compulsorily retiring the appellant was passed, it cannot be said that the order was
penal in nature. He further held that in four different inquiries, the appellant has been punished.
Learned Single Judge has also placed reliance on a judgment in the case of State of U.P. and Another Vs. Abhai Kishore Masta, He held that
the case decided by the Hon''ble Supreme Court in the case of High Court of High Court of Punjab and Haryana Through R.G. Vs. Ishwar Chand
Jain and Another, would not govern the case of the appellant so also the decision of a Division Bench of this Court in Special Civil Application No.
28 of 1990 was not held applicable.
Challenging the order under appeal, learned Counsel for the appellant submitted that he has no quarrel regarding first and second paragraph of
the order retiring the appellant compulsorily but when the order incorporates in itself a condition that pending inquiry should be continued even after
retirement of the appellant shows that the order was stigmatic and was actuated by the fact of inquiries being pending. The order was, thus, passed
on imputation and therefore vitiated. He placed reliance on a case decided in the case of High Court of Punjab and Haryana v. Ishwar Chand Jain
(supra) wherein the Hon''ble Supreme Court has held that though the order of compulsorily retiring respondent is innocuously worded but it is, in
fact, an order of his removal from service and cannot be sustained because it was based on the allegation of misconduct. We have considered the
observations of the Hon''ble Supreme Court in this case and we find that in the same judgment the Hon''ble Supreme Court has held as under:
Held further the respondent was retired while under suspension. It appears that the High Court on its administrative side decided to keep
disciplinary proceedings against respondent pending for the purpose of imposing the cut on his retrial benefits. The conclusion is obvious that action
of the High Court in retiring respondent was based on the allegation of misconduct, which was subject matter of inquiry before a Judge of the High
Court. The impugned order of compulsorily retiring the respondent though innocuously worded is in fact an order of his removal from service and
cannot be sustained.
If we give our thoughtful consideration to the facts of the case referred to hereinabove then we find that the adverse Confidential Reports which
remained for consideration were not of the nature which would entail passing of the order of compulsorily retirement and therefore the Hon''ble
Supreme Court was of the opinion that the orders though innocuously worded was based on allegation of misconduct. In the instant case as
admitted by the appellant himself certain adverse entries were there and representations were made against the adverse remarks. In relation to
some adverse remarks, the representations were rejected and in relation to some adverse remarks the representations were accepted. Thus, there
was sufficient material in form of adverse nature against the appellant. In that view of the matter it cannot be said that those adverse Confidential
Reports could not have been made the basis for retiring the appellant compulsorily and the order can only be said to be in relation to pending
inquiries regarding which only statement in the order of retirement is that the inquiry should be continued. In our considered opinion, it cannot be
said that condition No. 3 would be sufficient to couch the order punitive in character when there was sufficient material available in the form of
adverse nature against the appellant and therefore the argument of learned Counsel for the appellant that ratio of the decision in the said case would
govern the case of the appellant, cannot be sustained.
Learned Counsel for the appellant further relied on another decision of the Hon''ble Supreme Court in the case of State of U.P. And Anr. v.
Abhai Kishore Masta (supra) . In this case the Hon''ble Supreme Court has held at paragraph Nos. 7 and 8 as under:
para 7 - ...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 it 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.
Para 8 - In the The State of Uttar Pradesh Vs. Madan Mohan Nagar, it has been held by a Constitution Bench that the test to be applied in such
matters is ""does the order of compulsory retirement cast an aspersion or attach a stigma to the officer when it purports to retire him compulsorily?
It was observed that if the charge or imputation against the officer is made the condition of the exercise of the power it must be held to be by way
of punishment - otherwise not. In other words if it is found that the authority has adopted an easier course of retiring the employee under Rule 56(j)
instead of proceeding with and concluding the enquiry or where it is found that the main reason for compulsorily retiring the employee is the
pendency of the disciplinary proceeding or the levelling of the charges, as the case may be, it would be a case for holding it to be penal. But there
may also be a case where the order of compulsory retirement is not really or mainly based upon the charges or the pendency of disciplinary
enquiry. As a matter of fact, in many cases, it may happen that the authority competent to retire compulsorily under Rule 56(j) and authority
competent to impose the punishment in the disciplinary enquiry are different. It may also be that the charges communicated or the pendency of the
disciplinary enquiry is only one of the several circumstances taken into consideration. In such cases it cannot be said that merely because the order
of compulsory retirement is made after the charges are communicated or during the pendency of disciplinary enquiry, it is penal in nature.
The Hon''ble Supreme Court was of the opinion that the High Court was in error in holding that merely because the order of compulsory retirement
was passed during the pendency of a disciplinary enquiry, it must be necessarily deemed to be penal in nature, is unsustainable in law. Therefore,
condition No. 3 would not be to render the order of compulsorily retiring the appellant as punitive in character.
Learned Counsel for the appellant has relied on a decision of a Division Bench of this Court in Special Civil Application No. 28 of 1990. In this
case the appellant was allowed to cross Efficiency Bar. He was promoted to the post of Executive Engineer. These two factors were enough that
he was not `dead wood''. Therefore, the facts of this case would not be available to the appellant in the present case.
We find that sufficient adverse entries were available on record against the appellant. Representations made against which were rejected. Thus,
there was sufficient material adverse against the appellant and the pending of the enquiries which was in its nature available to the Department to
retire the appellant compulsorily after completion of 50 years in terms of Rule 161(1) of Bombay Civil Service Rules.
We find that there is no force in the appeal. The appeal is dismissed accordingly.
In view of dismissal of the appeal, the Civil Application does not survive. It accordingly stands disposed of.