Paschim Gujarat Vij Co. Ltd. vs Jayendra Chimanlal Shah

Mr. Vipul M. Pancholi, J. (Oral)—By way of this appeal filed under Clause 15 of the Letters Patent, the appellants-original respondents seek to challenge the order dated 4.1.2016 passed by learned Single Judge, whereby the learned Single Judge has allowed the petition and quashed and set aside the order of compulsory retirement dated 10.5.1995 passed by the appellants and also directed the appellants to pay the consequential benefits to the original petitioner.

The facts of the present case in nutshell are as under :

2.1. It is the case of the petitioner that he joined the Gujarat Electricity Board (''the Board'' for short) as Deputy Engineer Trainee and was posted as Deputy Engineer at Surendranagar on 9.12.1966. Thereafter, he was promoted as Executive Engineer on 30.12.1981. When he was working with the original respondent-Board, a complaint was filed on 14.3.1988 against him alleging that he has accepted illegal gratification for providing electric connection. FIR was therefore registered against the petitioner under Section 161 of Indian Penal Code (''the IPC'' for short) and Section 5(2) of the Prevention of Corruption Act (''the Corruption Act'' for short). It is the say of the petitioner that because of the registration of the said FIR, he was placed under suspension by office order dated 23.3.1988 and his suspension continued till 1995.

2.2. As per the case of the petitioner, the original respondent-Board passed an order on 10.5.1995 whereby the petitioner was ordered to be compulsorily retired with effect from 13.5.1995 on completion of 55 years of age. In the said order, it has been stated that original respondent no.2 has reasonable cause to believe that the petitioner is lacking in integrity and therefore by payment of three months salary/notice pay, the petitioner was ordered to be compulsorily retired. The petitioner, therefore, filed the aforesaid petition being Special Civil Application No. 4207 of 1995. The learned Single Judge by the impugned order dated 4.1.2016 allowed the said petition and thereby quashed and set aside the order of compulsory retirement passed by the present appellants and further directed that the consequential benefits be paid to the petitioner. The appellants have, therefore, filed this appeal.

Heard learned advocate Mr. Dipak Dave for the appellants and learned advocate Mr. D.S. Vasavada who appeared on caveat for the respondent-original petitioner.

4.1. Learned advocate Mr. Dave mainly contended that the appellants are having power to pass an order of compulsory retirement of an employee in view of General Standing Order (''the GSO'' for short) No.218 dated 26.4.1972. As per the said GSO, it is the right of the appointing authority to retire any employee by giving notice of not less than three months or salary of three months in lieu of notice period. Such powers can be exercised when an employee attains the age of 50 years or 55 years and therefore the appellants had exercised the powers when the petitioner completed 55 years on 13.5.1995. Learned advocate referred to the order dated 10.5.1995 produced at page 16 of the compilation and submitted that in the said order, it has been specifically stated that from the records available and documents produced before the concerned authority, it has reasonable cause to believe that the petitioner is lacking in integrity and therefore it would be appropriate to consider him for pre-mature retirement. Thus, when the appellants have exercised the powers conferred upon it looking to the service record of the petitioner, the learned Single Judge ought not to have interfered with the same and therefore the impugned order passed by the learned Single Judge be set aside.

4.2. Learned advocate Mr. Dave thereafter has placed reliance on Office Note No.15 dated 6.6.1995 which is produced at the time of hearing of this appeal and submitted that even before passing the order of compulsory retirement of the petitioner, the investigation was carried out by the Security Officer of the Vigilance Department, Head Office, Baroda regarding the complaints of irregularities committed by the petitioner and said investigating officer concluded that the petitioner had accepted illegal gratification from the consumers. On the basis of the said report, the Member (Technical) of the appellant authority observed in the said note that he has reasonable cause to believe that the petitioner is lacking in integrity. Learned advocate Mr. Dave, therefore submitted that when the appellants have considered the service record of the petitioner and found that the petitioner was lacking in integrity, the petitioner was compulsorily retired by the impugned order. Hence, it is submitted that learned Single Judge has committed error by allowing the petition.

4.3. Learned advocate Mr. Dave has placed reliance upon the decision rendered by the Hon''ble Supreme Court in the case of K. Kandaswamy v. Union of India reported in (1995) 6 SCC 162.

4.4. Relying upon the aforesaid decision, it is contended that if the appropriate authority bona fide forms the opinion that the employee is required to be compulsorily retired from the service, the correctness thereof on merits cannot be challenged before the Courts. However, the same may be challenged on the ground that requisite opinion is based on no evidence or has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. It is submitted that the petitioner has failed to demonstrate that the appellants have taken the decision with a malafide intention or the decision is arbitrary or without any evidence. He, therefore, submitted that the impugned order passed by the learned Single Judge be set aside.

On the other hand, learned advocate Mr. Vasavada has supported the reasoning given by the learned Single Judge and submitted that the present appeal be dismissed.

Having considered the submissions canvassed on behalf of learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that the appellants-authority has passed an order on 10.5.1995 while exercising the powers conferred upon it under the provisions of GSO No.218 dated 26.4.1972 read with service regulation no.72 of the Board under which it is required to review the case of the employee for extension of his service beyond 55 years of age. It is revealed from the said order that order of compulsory retirement of the petitioner was passed on the basis that he is lacking in integrity. It is also revealed from the office note no.15 dated 6.6.1995 produced on record by the learned advocate Mr. Dave at the time of hearing of this appeal that the appellants have also considered the investigation which was carried out by the Security Officer of the Vigilance Department, Head Office, Baroda regarding the complaints of irregularities committed by the petitioner while he was Executive Engineer at Morbi O and M Division. The relevant observation of the said office note for deciding this appeal are as under :

"Shri J.C. Shah, Executive Engineer (under suspension) working at Morbi O&M Division was arrested by Anti-corruption Bureau on the charge of accepting bribe of Rs. 10,000/- He was arrested by the ACB Inspectors while taking bribe of Rs. 3,000/- in his office from a farmer who wanted permission for an electric connection. The farmer had alleged to have paid Rs. 7,000/- to Shri J.C. Shah earlier. A detailed note of the incident that took place leading to acceptance of bribe is on page 1 to 4 NSA letter received from the Director, ACB informing the Chairman of the Board regarding Shri J.C. Shah and also advising to place him under suspension is at page-25 on the file placed below :

Shri J.C. Shah was prosecuted by the Police in pursuance to the sanction accorded by the Member(T) on 2.11.1988. Shri J.C. Shah was charged under the provisions of IPC Clause 161 and Clause 5(2) of Anti-Corruption Act, 1947.

In addition to above, an investigation was carried out by the Security Officer of the Vigilance Department, Head Office, Baroda regarding the complaints of irregularities committed by Shri J.C. Shah while he was Executive Engineer at Morbi O&M Division. The Investigation Officer has concluded that-

Shri J.C. Shah has violated Board''s Rules by revision F.Qs of 14 consumers of village Sajanpar after lapse of an year which was not within his powers.

Shri J.C. shah had instructed the Deputy Engineer to review the case of one Shri Amarshi Bechar to accept money of F.Q. after a lapse of one year which was not within the powers of Executive Engineer. It was also concluded by the Investigating Officer that Shri J.C. shah had accepted illegal gratification from the consumers."

Thus, from the aforesaid, it is clear that while passing an order of compulsory retirement of the petitioner, the appellants have considered the criminal case which was registered against him under the provisions of the Corruption Act as well as the internal investigation carried out by the Vigilance Department of the appellants which was carried out behind the back of the petitioner. No other material was considered by the appellants for passing the order of compulsory retirement. At this stage, we observe that the appellants have power to pass an order of compulsory retirement of an employee as per GSO No.218 dated 26.4.1972 read with service regulation no.72 when the employee attains a particular age in public interest. However, while exercising such powers, in the present case, the appellants have considered the criminal case which was registered under the Prevention of Corruption Act against the petitioner as well as investigation carried out by the Vigilance Department of the appellants behind the back of the petitioner. So far as criminal case is concerned, it is not in dispute that the petitioner has been acquitted by the criminal court by a judgment and order dated 13.4.1999 passed in Special Criminal Case no.3 of 1996 and the appeal which was filed by the state against the said judgment before the High Court was also dismissed on 21.9.1999. Further, the appellants have considered the investigation which was carried out behind the back of the petitioner for passing the order of compulsory retirement.

In the aforesaid facts of the case, if the decision rendered by the Hon''ble Supreme Court in the case of State of Gujarat v. Umedbhai M. Patel reported in 2001 (3) SCC 314 is considered, the Hon''ble Supreme Court has laid down the principles with regard to the compulsory retirement in paragraph 11 which reads as under :

"11. The law relating to compulsory retirement has now crystallised 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.

(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."

Thus, the Hon''ble Supreme Court has held that the order of compulsory retirement shall not be passed as a short cut to avoid the departmental inquiry when such course is more desirable and compulsory retirement shall not be imposed as a punitive measure.

In the case of K. Kandaswamy (supra), the Hon''ble Supreme Court has in paragraph 9 observed that the entire service record or character, rolls or confidential reports maintained would furnish the backdrop material for consideration by the Government or the Review Committee or the appropriate authority for considering the case of compulsory retirement. It is further observed that on consideration of the totality of the facts and circumstances alone, the Government should form the opinion that the Government Officer needs to be compulsorily retired from service. Therefore, the entire record more particularly, the latest, would form the foundation of the opinion and furnish the base to exercise the powers under relevant rule to compulsorily retire the Government Officer.

Thus, in the present case, the appellants have not considered the over all service record of the petitioner and only relied upon the criminal case as well as the investigation which was conducted behind the back of the petitioner which is not permissible.

If the facts of the present case are examined, it is revealed that it was open for the appellants at the relevant time to conduct the departmental inquiry against the petitioner for the alleged complaints filed against the petitioner as well as for the irregularities committed with regards to the complaints of the irregularities committed by the petitioner. No departmental inquiry was held for the allegations levelled in the criminal case against the petitioner nor for the alleged complaints of irregularities committed by the petitioner. On the contrary, it is revealed from the record that investigation was carried out by the Security Officer of the Vigilance Department of the appellant behind the back of the petitioner. Thus, the course of conducting departmental inquiry was though open, the appellants have adopted a short cut and thereby passed an order of compulsory retirement.

It is further revealed that the order of compulsory retirement is stigmatic as the appellants have stated in the order of compulsory retirement that the petitioner is lacking in integrity. Once again, it is observed that by arriving at such conclusion that the petitioner is lacking in integrity, criminal case and ex parte investigation carried out by Vigilance Department were taken into consideration. Thus, in over all view of the matter, we are of the opinion that the appellants were not justified in passing an order of compulsory retirement of the petitioner.

In view of the aforesaid discussion and in view of the reasoning recorded by the learned Single Judge, we are of the opinion that learned Single Judge has not committed any error while allowing the petition and therefore the present appeal being devoid of any merits, is dismissed. The appellants are directed to pay all the consequential benefits within a period of twelve weeks from the date of receipt of this order, as the time limit given by the learned Single Judge to pay such benefits is over.

As the appeal is dismissed, civil application also stands dismissed.