Rasiklal Labhubhai Sayani vs State of Gujarat and 3 Other

C.L. Soni, J.—The petitioner, by filing this petition under Article 226 of the Constitution of India, has challenged order dated 30.6.2001 passed by the Member Secretary, Gujarat Water Supply and Sewerage Board, Gandhinagar for compulsory retirement of the petitioner from the post of Superintending Engineer (Civil) as well as the order dated 13.5.2002 passed by the Chief Administrative Officer refusing to accept the appeal filed by the petitioner against the order of compulsory retirement. The case of the petitioner is that he joined as Junior Engineer in Panchayat and Health Department on 4.1.1969 and was promoted to the post of Deputy Executive Engineer with effect from 1.1.1978 and was further promoted as Executive Engineer with effect from 22.1.1993 and thereafter, he was lastly promoted to the post of Superintending Engineer with effect from 3.2.2000. It is his further case that after he resumed duties as Superintending Engineer at Amreli, in the month of November, 2000, he was transferred at Gandhinagar where he could hardly work for some period and all of a sudden, he was compulsorily retired by order dated 30.6.2001 by exercising powers under Rule 161(1)(aa) of the Bombay Civil Service Rules ("BCSRs" for short) under the guise of public interest.

The petition is opposed by filing reply affidavit on behalf of respondent No. 2 wherein it is stated that the review committee of the Board met on 28.6.2001 to review the performance of the officers and the review committee considered the cases of about 20 senior officers and thought it fit to recommend the compulsory retirement of the petitioner. It is stated that the services of the petitioner were not satisfactory and he was placed under suspension vide order dated 22.5.1999 for the negligence and in subordination in duty. It is also stated that while the petitioner was working as Superintending Engineer at a later point of time in Community Support Unit, his performance was not at all satisfactory and the Chief Engineer had placed confidential note on 19.6.2001 to the higher authority in this regard. It is stated that after taking over all stock of the situation, review committee took decision to retire the petitioner compulsorily from service in the interest of administration and public at large.

The petitioner has filed rejoinder to the said reply affidavit stating that except the order of suspension passed against the petitioner dated 22.5.1999, and the letter of the Chief Engineer dated 19.6.2001, there was nothing adverse against the petitioner which called for passing of the order of compulsory retirement against the petitioner.

I have heard learned advocates for the parties.

Learned Advocate Ms. Archana Amin appearing for learned advocate Mr. Murli N. Devnani for the petitioner submitted that considering satisfactory performance of the petitioner, the petitioner was recently promoted before the order of compulsory retirement passed against the petitioner. Ms. Amin submitted that for passing the order of compulsory retirement, respondents have considered suspension order passed in the year 1999 and communication from the Chief Engineer dated 19.6.2001. She submitted that except the above, there was no other material against the petitioner which could have called for exercising powers for passing the order of compulsory retirement against the petitioner.

Ms. Amin submitted that the petitioner was promoted thrice in his service career and after the last promotion, only within few months, the petitioner was compulsorily retired though nothing adverse in the Annual Confidential Reports ("ACRs" for short) of the petitioner was available with the review committee. Ms. Amin submitted that the review committee has not considered and discussed any material adverse to the petitioner in its report for taking decision to compulsorily retire the petitioner. Ms. Amin submitted that if the petitioner was promoted in the month of February, 2000, the petitioner could not have been retired compulsorily simply on the basis of one letter from the Chief Engineer. Ms. Amin submitted that the respondent authorities as also review committee has not followed the Circular of the State Government for passing the order of compulsory retirement against the petitioner. She submitted that as per the said circular, review committee is under obligation to record fully and clearly the points taken into consideration and the reasons for conclusion for compulsory retirement. She submitted that the review committee in its report has not given any reasons or points or discussed any material based on which it took the decision to compulsorily retire the petitioner. She submitted that the consideration of the cases of 19 other officers with the petitioner against whom review committee did not recommend to pass order of compulsory retirement is nothing but making a show that there was no bias attitude towards the petitioner. She submitted that since there was no material against the petitioner for exercise of the powers under rule 161(1)(aa) of the BCSRs, the order of compulsory retirement passed against the petitioner is required to be quashed and set aside.

As against the above arguments, learned advocate Mr. HS Munshaw appearing for respondent no. 2 submitted that the review committee has in its decision clearly stated that it had considered material of departmental inquiry, ACRs as well as the confidential communication of the higher officer and on the basis of such material which was available with the review committee, the review committee decided to compulsorily retire the petitioner. Mr. Munshaw submitted that such decision being passed by the authorized review committee on the basis of material available before it, this court would not like to sit in appeal over such decision while exercising the powers under Article 226 of the Constitution of India. Mr. Munshaw submitted that the petitioner was placed under suspension for negligence in performance of duties in the year 1999 and thereafter, the petitioner was served with notice dated 17.5.2001 asking for his explanation as to why disciplinary proceedings should not be initiated against him on the ground that he left Bhuj without completing work of water supply scheme and came back to Gandhinagar. Mr. Munshaw submitted that the petitioner had earlier also left important public work and he was never serious about his duty. Mr. Munshaw submitted that the higher officer of the petitioner-Chief Engineer made confidential note making serious complaint about the petitioner not doing any work and in the habit of avoiding work. Mr. Munshaw submitted that the petitioner who was in the habit of not doing the work and leaving work incomplete if found not fit to be continued in service in public interest, no illegality could be said to have been committed by the authority in passing order of compulsory retirement against him. Mr. Munshaw submitted that the review committee as also the respondents have fully complied with the circular issued by the State Government for compulsory retirement and since there was sufficient material before the review committee to take decision to pass order of compulsory retirement, this court may not interfere with the decision of the review committee and with the ultimate order of compulsory retirement.

Learned A.G.P. Mr. Manan Mehta while adopting the arguments of learned Advocate Mr. H.S. Munshaw, submitted that the decision taken by the review committee is on record which clearly reveals that the review committee had considered the ACRs of all the officers whose cases were placed before the review committee and also considered other material to decide as to whether those officers and the petitioner were required to be retained in service or not. Mr. Mehta submitted that the petitioner was in the habit of avoiding work and he was also served with the notice calling upon him to explain for not completing the work of water supply at Bhuj. Mr. Mehta submitted that from the said notice as also the communication of the Chief Engineer dated 19.6.2001, it becomes very clear that the petitioner was not working in public interest, therefore, it cannot be said that the respondent authorities have committed any illegality in passing the order of compulsory retirement against the petitioner.

Having heard the learned advocates for the parties and having perused the record of the case, it appears that the petitioner was promoted to the post of Superintending Engineer in the month of February, 2000. He was served with the notice annexure B dated 17.5.2001 asking him to explain as to why he left Bhuj without completing the work of water supply scheme in Bhuj. However, no reasons are coming forward as to why the respondents did not pursue such notice. Shortly thereafter, the Chief Engineer sent confidential note dated 19.6.2001 which reads as under:

Confidential

19th June, 2001.

Note:

On my taking over as Chief Engineer (CMSU) in April, 2001, I have been observing the performance of Shri R.L. Sayani, Superintending Engineer working in CMSU. On my evaluation and assessment of Shri Sayani, I have derived conclusions as under:

* He does not take any interest in the CMSU activities.

* It seems he does not want to continue in the organization and take responsibility as a Sr. Officer to achieve the tasks that are assigned to him as a part of his posting in CMSU.

* He is not doing any work and he is in the habit of avoiding work that is assigned to him.

* He has not contributed at all in speedy implementation of the Ghogha Regional Water Supply Scheme under Netherlands Aid.

* The team leader CMSU has also been telling me that the Superintending Engineer is not contributing at all and creates hurdles in smooth functioning of the organization.

* He does not communicate with me on important matters and avoids briefing me.

* He has without consulting me made a request to the Chairman for his transfer on to the field. This application was not routed through the undersigned. The action on his part is against the normal administrative discipline.

In my opinion, it will be in the interest of the organization to move out Mr. Sayani from CMSU as he has not positively contributed to the project as well as the organization and his continuation in CMSU will have far reaching negative impacts on the performance of the organizations.

Sd/- (B.J. Vasavada) Chief Engineer

The confidential note while suggesting that the petitioner did not take interest in the Community Management & Support Unit ("CMSU" for short) and was in the habit of avoiding work assigned to him in the said scheme, further records that the petitioner was not communicating with the author of the said confidential note i.e. Chief Engineer on important matters and avoiding briefing him. It is further recorded that the petitioner, without consulting him, requested to the Chairman for his transfer to the field. It was, therefore, felt by the Chief Engineer that since the application was not routed through him, such action on the part of the petitioner was against the normal administrative discipline. He, therefore, suggested in the confidential note that it would be in the interest of the organization to move the petitioner from CMSU as the petitioner has not positively contributed to the project as well as to the organization and his continuation in the CMSU would have far reaching negative effect for the performance of the project.

At this stage, ACRs of the petitioner from the year 1991 to 1999, made available for perusal of the Court are required to be referred. They are as under:

For the period from 12.7.1999 to 31.12.1999, the earlier Chief Engineer Shri CJ Ruparelia has written confidential report in respect of the petitioner which reads as under:

''Special Report''

Name: Shri R.L. Sayani. Post: Executive Engineer, P.H.W. Division No. 1, Amreli. Period: 12.07.99 TO 31.12.99. Date of Report: 17th January, 2000. Name Of Duties Performed and Assessment:

He is in charge of P.H.W. Division No. 1 Amreli under jurisdiction of which 7 Talukas of Amreli District Falls. During the period of report (Ap. 6 month) he has performed his duties with due responsibility and efficiently (efficiently). In this period, Sardar Sarovar Canal based pipeline Project from Amreli, Dhari and Amreli Savarkundla (Modnla D2) with estimated cost of Rs. 50.0 crores was prepared and tenders were invited and finalized also. The work is also started. The tender for Rayadi Reg. W.S. Scheme (in turn-key basis) which was invited earlier was opened and processed which is still under approval. Other action plan works such as Chital W.S. Scheme other NC/PC habitants W/S Scheme were also started and under progress. The Scarcity master plan for district was prepared in consultation of Collector and D.D.O.

During the period, Shri Sayani is found to be decisive (decisive) responsible and hard working. During the period under report, nothing is noticed by the under signed which reflects adversely on integrity of the Officer. Further during the period under report, no disciplinary actions were taken and no complaints were received.

Leave Period:-He has not enjoyed any leave during the period.

Sd/- (B.K. Shingala) Superintending Engineer PH Circle, GWS & SB Amreli.

Agreed

Sd/- (C.J. Ruparelia) Zone-III GW SSB, Rajkot.

Thereafter, his confidential report for the period from April, 2000 to November, 2000 reveals that the petitioner was graded "good" as regards assessment of work and integrity. From November, 2000 to March, 2001, the ACR of the petitioner records that he is having tendency to refer back the cases and is over all assessed as average officer but nothing adverse about his integrity is stated.

Review committee has not discussed anything about the ACRs of the petitioner. Review Committee has cursorily stated that it has considered material of departmental inquiry against the officers and their ACRs and the confidential letters of their higher officers.

As per the circular of the Government annexed with the reply, review committee is required to record fully and clearly the reasons for its assessment and conclusion on the basis of the ACRs of the officers for the last eight to ten years. Physical and mental condition of the officer is also required to be considered. Review committee has not discussed anything about the ACRs of the petitioner. In the ACRs of the petitioner, the performance of the petitioner before November, 2000 is shown to be satisfactory and he is stated to be good, hard working, very good officer. Thereafter in last few months'' ACRs, he is branded as average officer.

If such were the entries in the ACRs of the petitioner and if the confidential note suggested for placing the petitioner out of CMSU, it could not be said that the review committee arrived at correct conclusion for compulsory retirement of the petitioner. In fact, report of the review committee is totally unreasoned and non-speaking and it appears that the review committee has not at all applied its mind to the material in favour of the petitioner and has just considered the confidential letter of the higher officer to compulsorily retire the petitioner.

In the case of M.P. State Co-op. Dairy Fedn. Ltd. and Another Vs. Rajnesh Kumar Jamindar and Others, , Hon''ble Supreme Court has held and observed in para 39, 48 and 51 as under:

Before us, like before the learned Single Judge and the Division Bench of the High Court, various discrepancies in the report of the Scrutiny Committee as approved by the Review Committee were pointed out. The examples placed before us clearly demonstrate that neither the Scrutiny Committee nor the Review Committee took into consideration the relevant factors germane for the purpose of passing such an order and in fact had taken into consideration irrelevant factors which were not germane therefor. Some of the employees, for a number of years, had been shown to be good officers; ACRs of some of whom in some of the years have been "very good".

It is also a well-settled principle of law that an authority discharging a public function must act fairly. It, for the aforementioned purpose, cannot take into consideration an irrelevant or extraneous matter which is not germane for the purpose for which the power is sought to be exercised. The Scrutiny Committee as also the Review Committee was required to pose unto themselves a correct question of law so as to enable them to find out a correct answer. It was, therefore, imperative that the criteria laid down in the circulars issued by the State of Madhya Pradesh should have been scrupulously followed. Federation, therefore, in our opinion, having regard to the fact that there was no material to show that the respondents employees had become dead wood, inefficient or corrupt, must be held to have abused its power.

Submission of Mr. Sreekumar, that the High Court should not have interfered with the order of compulsory retirement keeping in view the fact that no malafide has been alleged in the Scrutiny Committee nor any case of discrimination has been made out, cannot be accepted. It is one thing to say that a yardstick has been fixed for the purpose of taking recourse to the power of compulsory retirement but there cannot be any doubt or dispute that such yardstick must be based on relevant criteria. If the relevant criteria, as has been laid down by the State, which has been adopted by the Federation, had not been acted upon, the order must be held to have been suffering from jurisdictional error.

It appears that the petitioner had no cordial relations with the Chief Engineer under whom he lastly worked. From the confidential note, it appears that the Chief Engineer did not like the petitioner making request for his transfer to the Chairman from CMSU Project. The Chief Engineer has suggested in his note to place the petitioner, out of the CMSU Project. However, such would never be a ground to come to the conclusion that the petitioner had become dead wood so as to compulsorily retire him from service.

For the reasons stated above, order of compulsory retirement passed against the petitioner cannot stand scrutiny of law and, therefore, same is required to be quashed and set aside. However, while quashing and setting aside the order of compulsory retirement, in the facts of the case, the petitioner could not be held entitled to full back wages. Interest of justice would be sub-served if the petitioner is awarded back wages to the extent of 40 per cent. In the result, the petition is allowed. Order of compulsory retirement dated 30.6.2001 is quashed and set aside. Petitioner is held to be in continuous service irrespective of the order of compulsory retirement till the date of his superannuation. However, the petitioner shall be entitled to back wages only to the extent of 40%. The petitioner shall also be entitled to all other consequential benefits on the basis of his continuous service. Respondents are directed to work out and pay all consequential benefits available to the petitioner including 40% back wages within two months from the date of receipt of this order. Rule is made absolute to the extent stated above.