Choudhari Mohd.Abdul Kadar vs The Chief Officer
2010 Latest Caselaw 100 Bom

                                       1




                                                                          
                 IN THE HIGH COURT OF JUDICATURE OF BOMBAY




                                                 
                                 BENCH AT AURANGABAD


                       WRIT PETITION NO.5610 OF 2004




                                                
    Choudhari Mohd.Abdul Kadar,
    S/o.Mohd.Yusuf,
    Age-55 years, Occu-Service,
    R/o.Mahella Hafte Biradran, Udgir,




                                     
    Tq.Udgir, Dist. Latur                                      PETITIONER


                 VERSUS
                        
                       
    1. The Chief Officer, 
        Municipal Council Udgir,
        Tq.Udgir, Dist. Latur.
      


    2. The President,
        Municipal Council Udgir,
   



        Tq.Udgir, Dist. Latur,

    3. The District Collector, 
        Dist. Latur.





    4. The Divisional Commissioner and 
        The Regional Director of Municipal 
        Administration, Aurangabad,





    5. The State of Maharashtra,
        Through its Secretary,
        Department of Urban Development,
        Mantralaya, Mumbai-32                                   RESPONDENTS

Mr.M.S.Choudhari, learned counsel for the petitioner. Mrs.B.R.Khekale, learned A.G.P. for respondent State. Mr.P.V.Barde, learned counsel for respondent no.1 and 2.

                                                                                  
                                 (CORAM : V.R.KINGAONKAR, AND




                                                          
                                               A.V.POTDAR, J.J.)


                                 RESERVED ON     : 08/10/2010
                                 PRONOUNCED ON : 27/10/2010




                                                         
    JUDGMENT : (Per A.V.Potdar, J.)




                                            

1. By the present writ petition, under Article 226 of The

Constitution of India, the petitioner has approached this Court for

the reliefs in terms of prayer clause (B) to (E) which read as follows :

B. To quash and set aside the resolution no.29 dtd.

29/07/2004 and notice of compulsory retirement of petitioner

issued by the respondent no.1 MCU/Est.-2/420/04, dtd.

31/07/2004 issued by the respondent no.1.

C. To direct the respondent no.1 and 2 to award

promotion to the post of Senior Clerk to the petitioner w.e.f.

21/03/1985 and subsequent promotions and service benefit as

per law and in view of the seniority and reservation against the

handicapped and OBC and other consequential service

benefits.

D. To direct the respondent no.1 to grant two days leave

of dated 20/01/2004 and 21/01/2004 which has been refused

and treated as absent from duties.

E. The respondent no.5 may kindly be directed to hold

inquiry against the respondent no.1 and 2 regarding their mis-

management, irregularities, corrupt practices, acting as a

dictator not acting as per law and directions of the higher

authorities and to punish them accordingly.

2. It appears that rule was issued in this writ petition on

14/09/2004.

3. Before considering the submissions of learned counsel for the

petitioner, and for respondent no.1 and 2, it is necessary to consider

the chequered history of long litigation between the petitioner and

respondent no.1 and 2, which is not under dispute.

A) On 13/01/1970, petitioner was appointed as Jr.Clerk in

Udgir Municipal Council, Udgir. It is alleged that in the year 1985,

two employees namely B.Y.Shinde and Chisti Yusufoddin, alleged

to have been junior to him in service, were promoted to the post of

Senior Clerk. Petitioner has challenged his promotion by preferring

an appeal bearing no.1985/MUN/R/43 before The Additional

Commissioner and Regional Director, Municipal Administration,

Aurangabad (Respondent no.4 herein.) The said appeal was

disposed of vide order dated 18/02/1987, by directing Municipal

Council, Udgir to decide the claim of the petitioner within the period

of 3 months.

B) As the directions issued dated 18/02/1987 were not

complied by respondent no.1 and 2, petitioner had filed writ petition

no.1737/1987 before this Court. The said writ petition was disposed

of by an order dated 23/01/1990, directing respondents no.1 and 2

to promote the petitioner with immediate effect. As the order dated

23/01/1990 was not complied by respondents no.1 and 2, petitioner

had filed CP No.226/1990. On receipt of show cause notice in the

said contempt petition, petitioner was allowed to resume his duties as

a Senior Clerk w.e.f. 09/12/1990.

C) Within 2 weeks after 09/12/1990, petitioner was

suspended from his service w.e.f. 20/12/1990. Said suspension

order was challenged by way of Civil Application No.3951/1990 in CP

No.226/1990. By order dated 10/07/1991, the civil application was

allowed by quashing the order of suspension. Petitioner was re-

instated in service as Sr.Clerk w.e.f. 30/07/1991.

D) By order dated 12/10/1991, the petitioner was reverted

to the post of Jr.Clerk. Again the order was challenged before this

Court by filing Writ Petition No.3716/1991. In the said writ petition,

interim order was passed on 05/12/1991, and the said reversion

order was stayed as the order of status-quo ante was passed. As the

interim order was not obeyed by respondent no.1 and 2, petitioner

had filed CP No.21/1992 before this Court. After receipt of show

cause notice, respondent no.1 and 2, by their order dated

15/02/1992, allowed the petitioner to join the duties as Sr.Clerk

w.e.f. 20/02/1992, but it is contended that he was not assigned the

work of Sr.Clerk.

4. It is further contended by the petitioner that as per resolution

passed by the Government of Maharashtra, he was entitled for

promotion of Sr.Clerk w.e.f. 1985. Petitioner had submitted various

representations to that effect, but those representations were not

considered by respondent no.1 and 2. It is also contended that the

first respondent had submitted proposals respectively dated

23/03/1993, and 14/11/1993 to respondent no.2 for promotion of

petitioner from 19/02/1990, instead from 21/03/1985 and for re-

fixation of pay scale. Respondent no.2 had consented the said

proposal and accordingly office order dated 30/03/2003 was issued.

5. It is further contended that the petitioner was assured that his

case will be considered for further promotion if he will withdraw the

pending proceedings before this Court. Relying on this assurance,

petitioner had withdrawn the writ petition no.1737/1989 and CP No.

226/1990 on 21/09/2001. It is further contended that later on

the assurance given to the petitioner was not complied with, hence

petitioner had filed various representations before the competent

authorities.

6. The petitioner had made certain allegations against respondent

no.1 and 2 about their illegal demands and submitted complaints to

that effect to respondent no.3. It is also contended that respondent

no.3 to 5, being satisfied with the representations of the petitioner,

issued certain directions to that effect to respondent no.1. It is also

contended that the respondent no.4 directed respondent no.3 to

decide the claim of the petitioner vide letter dated 24/02/2004. It is

contended that on 08/01/2004, respondent no.1 and 2, called the

petitioner to submit the report of work done by him in last 5 years, to

which explanation was offered by the petitioner on 12/01/2004. It is

further contended that the respondent no.1 and 2 have called upon a

special meeting on 12/02/2004, in which resolution no.23 was

passed to conduct the inquiry against the petitioner by suspending

him during the inquiry, if required. It is also resolved in the said

resolution that if the petitioner found guilty in the said inquiry, then

action of compulsory retirement be taken against the petitioner. It is

further contended that on 29/07/2004, resolution no.29 was passed

by respondent no.1 and 2, and thereby petitioner was compulsorily

retired from services w.e.f. 01/08/2004. Accordingly, notice dated

31/07/2004 was served upon him with the payment of 3 months

salary. This order is challenged in the present writ petition for the

grounds stated in para no.16(I) to (XVII) of the writ petition.

7. After the rule was issued in this writ petition, affidavit in reply

was filed on behalf of respondent no.1 and 2, inter alia contending

that the petitioner was appointed only as a 'typist' and not as a 'Jr.

Clerk-cum-typist', hence he is not liable for the promotion of

'Sr.Clerk'. It is further contended that the petitioner has mis-

interpreted the order passed in the appeal by 4th respondent.

According to these respondents, there was no approved vacant post of

Sr.Clerk, neither the petitioner was holding requisite qualification,

which is required for the post of Sr.Clerk. Only to honour the

interim order passed by this Court, in writ petition no.1373/1989,

petitioner was appointed as Sr.Clerk w.e.f. 09/12/1990, but the

petitioner was suspended on 20/12/1990 due to his mis-conduct

and mis-behaviour with the citizens of Udgir town. However, by

virtue of interim order passed in civil application by this Court, he

was re-instated on 30/07/1991. It is further contended in the said

affidavit in reply that the Government Resolution passed by the

Government of Maharashtra, on which the petitioner has relied upon,

are not applicable to the case of the petitioner, as the promotional

post mentioned in the said resolution is to be filled from the clerical

category, and not from the typist category. The promotion was

granted to the petitioner, only to honour the interim order passed by

this Court, but further higher pay scale was not granted to him after

12 years. These respondents specifically denied that he is not

entitled for the deemed promotion from the year 1985. It is further

contended that on the basis of forged documents, promotion of senior

clerk was awarded to the petitioner on 30/03/2003 from

21/03/1985. It is denied by these respondents that on their

assurance, petitioner had withdrawn pending writ petition and

contempt petition in the High Court. It is alleged that the petitioner

is habituated to lodge baseless complaints against every Chief Officer

of the Udgir Municipal Council, District Collector and all the high

profile office bearers. In paragraph 13 of the affidavit in reply, it is

specifically contended by these respondents that the order of

compulsory retirement was given to the petitioner in the public

interest after scrutinizing the performance of the petitioner by the

Municipal Council. It is contended that the petitioner was ignorant

of his duties since his appointment, for which several warning

memos were issued to him. It is contended that the petitioner has

misused his post by using office stationary and type-writer for his

personal job to gain monitory benefit, for which several show cause

notices were issued to him. In paragraph no.14, it is contended that

the petitioner used to collect more amount from the public at large

than the prescribed rate as the copying charges, to provide the copies

of the record. While preparing the statement of pay fixation of the

employees, in accordance with the re-commendation of the Bhole

Commission, the petitioner made certain over-writing in his own

figure of pay fixation and added some words against his name in the

said statement. It is further contended that the petitioner was

entrusted with the duties of 'Godown Keeper'. He allowed certain

businessmen to clear their articles without charging and collecting

the requisite octroi. He has also made certain overwriting in the

Birth and Death Entries Register, when he was In-charge. For all

these counts, he was kept under suspension from time to time. It is

further contended that he was entrusted with the duties of 'Tree

Inspector'. At that time, he had sold certain trees, which were cut,

for which complaint was lodged with the police. When the petitioner

was allotted the work of maintaining 'Inward and Outward Register',

he has not attended his duties for more than 2 months. When the

petitioner was entrusted with the duties of 'One Window Project', he

has not attended the duties till his retirement. For these reasons, it

is prayed that the writ petition is devoid of any merits and to be

dismissed with costs.

8. Record reveals that at the time of issuance of Rule, learned

A.G.P. waived the notice for respondent no.3,4 and 5, but the record

shows that no affidavit in reply was filed on behalf of these

respondents to oppose the writ petition, neither learned A.G.P. has

participated in the hearing of this writ petition.

9. In this background, we have heard submissions of learned

counsel for the petitioner followed by the submissions of learned

counsel for respondent no.1 and 2.

10. At this juncture, we may take the note of one fact that the writ

petition was filed in the year 2004. At that time, age of the petitioner

was 55 as mentioned in the cause title of the writ petition. Then, it

is but natural that when the writ petition came upon board for final

hearing, the petitioner, if in service, might have been retired due to

attaining his age of superannuation i.e. after completion of age of 58

years. In view of this, prayers in terms of prayer clause D and E

became redundant.

11. Further, we have to take a note of the fact that when the writ

petition was on board on 13/08/2010, we have noticed that the

copies of Municipal Resolution dated 12/02/2004 and 29/07/2004

were not annexed with the writ petition. Specific statement is found

made in the body of the writ petition by the petitioner that even

though he had applied for the copies of Municipal Resolution of

12/02/2004, and 29/07/2004, copies of those 2 resolutions were not

supplied to him, hence directions were given to the learned counsel

for respondent no.1 and 2, to produce the copies of those resolutions

and to produce the outward numbers to show, whether in reality, the

copies of those 2 resolutions were supplied to the petitioner, or the

petitioner has made incorrect or false statement in the petition that

copies of those 2 resolutions were not supplied to him. We have

also directed the learned counsel for first respondent to produce the

entire record pertaining to the administrative decision including the

resolutions and the file about the proceeding of compulsory

retirement of the petitioner from service under Rule 65(1)(b) of The

Maharashtra Civil Services (Pension) Rule, 1982. By our order dated

03/09/2010, we have also directed to learned counsel for respondent

no.1 and 2 to make available the record pertaining to Annual

Confidential Report of the petitioner of 5 years preceding to the order

of compulsory retirement on the adjourned date. To our utter

surprise, when the petition was taken for final hearing, on that day,

the record pertaining to the Annual Confidential Report was not

produced before the Court and the learned counsel for respondent

no.1 and 2 expressed his inability to produce the record pertaining to

Annual Confidential Report of 5 preceding years or so before this

Court, as according to him, such record is not made available to him

to produce it before this Court inspite of specific directions of this

Court.

12. During the course of submissions across the bar, on behalf of

learned counsel for the petitioner, it is contended that the action of

compulsory retirement taken against the petitioner is malafide and

against the principal of natural justice. Before passing the

resolution dated 29/07/2004, no opportunity of hearing was given to

him, nor any departmental inquiry was conducted against him as per

the earlier resolution no.23 dated 12/02/2004. According to learned

counsel for petitioner, the action of compulsory retirement taken

against the petitioner by respondent no.1 and 2 is against the

provisions of Law. In support of his contention, learned counsel for

petitioner placed his reliance in the matter of Sukhdeo Versus

Commissioner Amravati Division, Amravati and another,

reported in (1996) 5 SCC 103, wherein it is observed in paragraph

no.6 that,"it is settled law that when the Government resorts to

compulsorily retire a government servant, the entire record of service,

particularly, in the last period of service is required to be closely

scrutinized and the power would be reasonably exercised as observed

in State Bank of India versus Kashinth Kher (JT at p.578 para 15)".

13. While opposing the writ petition, it is urged on behalf of the

respondents that the petitioner was compulsorily retired under Rule

65(1)(b) of The Maharashtra Civil Services (Pension) Rules, 1982 in

the public interest, as there was complaints of public at large against

the petitioner. It is also contended that the colleagues of the

petitioner were also not ready to work with the petitioner and several

complaints were received against the petitioner of his own colleagues.

It is also contended that when certain duties were assigned to the

petitioner, he has misused his powers while performing those duties,

of which details are given in the affidavit in reply. It is also

contended that the petitioner was habitual in lodging complaints and

making allegations against the staff and others, not only to the higher

authorities of respondent no.1 and 2, but to the authorities, who are

noway concern with the administration of respondent no.1 and 2.

Petitioner is a person of quarrelsome nature and hence by passing

the resolution, order of compulsory retirement of the petitioner was

passed by respondent no.1 and 2. In support of contention of the

respondent no.1 and 2, reliance is placed on the observations in para

no.12 and 13 in the matter of Namdeo Mahadeo Surjuse versus

State of Maharashtra and others, reported in 2009(6) Bom.C.R.

779.

The Hon'ble Apex Court way back in the year 1992 in

a case of (Baikuntha Nath Das and another Vs. Chief

District Medical Officer, Baripada and another)1, reported in

1992 DGLS (soft) 167 : A.I.R. 1992 S.C. 1020 pointed out by

learned AGP has observed regarding compulsory retirement

in paragraph no.32 to that effect :

"32. The following principles emerge from the above

discussion :

           (i)      An   order   of   compulsory   retirement   is   not   a  

           punishment.     It   implies   no   stigma   nor   any   suggestion   of  

           misbehaviour. 

(ii) The order has to be passed by the Government on

forming the opinion that it is in the public interest to retire a

Government servant compulsorily. The order is passed on

the subjective satisfaction of the Government.

(iii) Principles of natural justice have no place in the

context of an order of compulsory retirement. This does not

mean that judicial scrutiny is excluded altogether. While

the High Court or this Court would not examine the matter

as an Appellate Court, they may interfere if they are

satisfied that the order is passed (a) mala fide, or (b) that it

is based on no evidence, or (c) that it is arbitrary in the

sense that no reasonable person would form the requisite

opinion on the given material in short; if it is found to be a

perverse order.

(iv) The Government (or the Review Committee, as the

case may be) shall have to consider the entire record of

service before taking a decision in the matter - of course

attaching more importance to record of and performance

during the later years. The record to be so considered

would naturally include the entries in the confidential

records/character rolls, both favourable and adverse. If a

Government servant is promoted to a higher post

notwithstanding the adverse remarks, such remarks lose

their sting, more so, if the promotion is based upon merit

(selection) and not upon seniority.

(v) An order of compulsory retirement is not liable to be

quashed by a Court merely on the showing that while

passing it un-communicated adverse remarks were also

taken into consideration. That circumstance by itself can

not be a basis for interference.

Interference is permissible only on the grounds mentioned

in (iii) above. This object has been discussed in paras 29

to 31 above (emphasis supplied by this Court)

13. While in another decision pointed out by learned AGP

in the case of (State of Gujrath Vs.Umedbhai M.Patel)2,

2001 DGLS (Soft) 366 : 2001(3) S.C.C.314 the Hon'ble Apex

Court observed thus in paragraph no.11 :

The law relating to compulsory retirement has been

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 un-communicated 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, (emphasis supplied by this Court)

(underline is mine, emphasis supplied)

It is urged on behalf of the respondent no.1 and 2 that considering

the observations in the case of Namdeo Versus State of

Maharashtra (cited supra), it is not necessary to hear the petitioner

before passing the order of compulsory retirement, as it is not a

stigma on the concerned employee. This order is passed on the

subjective satisfaction of the members of respondent no.1 and 2 who

have passed this order after perusal of the entire record of the

petitioner.

14. Before considering these rival submissions, we have to consider

the observations of the Apex Court in the matter of Prabodh Sagar

Versus Punjab State Electricity Board and others, reported in

(2000) 5 Supreme Court Cases 630, wherein it is held that "Malice"

means and implies spite or ill-will, which is a question of fact. There

can not be any set of guidelines for proving the malafides, but it has

to be ascertained from the facts and record of the case. Mere

avernments of malafides is not enough, but it is to be supported by

facts and the Court is required to scan those facts while coming to its

own conclusion. It is also observed that when an employee is

ordered to be retired compulsorily, there shall be subjective

satisfaction that the services of the employer are not required in the

public interest, and it is to be scanned in the light of the Annual

Confidential Report or record maintained by the employer.

14. From the record made available to us, it is clear that inspite of

specific order dated 03/09/2010, Annual Confidential Reports of 5

years, preceding to the order of compulsory retirement of the

petitioner are not made available before us. It revealed that, either

the Annual Confidential Reports are not maintained or there is

nothing adverse against the petitioner in the said Annual

Confidential Reports, hence they are deliberately not produced before

us, but the fact remains that the Annual Confidential Reports of the

petitioner are not placed before us for our observation. It is clear

from Resolution No.23 dated 12/02/2004 as well as resolution no.29

dated 29/07/2004 that the copies of these resolutions were not

supplied to the petitioner as demanded by him. These 2 resolutions

also do not disclose that the Annual Confidential Reports of the

petitioner were placed before the respondent no.1 and 2 and the

others, when these resolutions were passed. In absence of Annual

Confidential Reports of the petitioner placed on record, it is very

difficult to gather whether those Annual Confidential Reports disclose

any adverse entries against the petitioner. From the underlined

portion of (iii) of paragraph 32 , discussed in para no.12 of this

judgment, passed in the matter of Sukhdeo versus Commissioner

of Amravati, it is observed that perusal of the confidential report,

there is subjective satisfaction of the employer that in the public

interest, further services of the employee require to be terminated. It

is observed in para no.(iii), (iv) and (v), paragraph 12 of this

judgment, in the matter of Sukhdeo versus Commissioner of

Amravati, Division Amravati that adverse entries made in the

confidential report shall be taken note of and be given due weightage

in passing such order and Even un-communicated entries in the

confidential record can also be taken into consideration. But for that

purpose, scanning of the confidential reports is necessary. In the

case in hand, as the Annual Confidential Reports are not made

available to us, nor they discussed in the resolutions impugned, it is

not possible to conclude that before passing the said resolutions,

confidential reports of the petitioner were placed before the

Committee, and the Committee had an occasion to go through the

confidential record of the petitioner and after subjective satisfaction

of the Committee, the impugned resolutions were passed. It is to be

noted that in un-ambiguous terms, in Resolution no.23 dated

12/02/2004, it is observed by the respondent no.1 and 2 that inquiry

be conducted about the irregularities and illegalities committed by

the petitioner while performing his duties, and the respondents have

granted permission to conduct such inquiry. After inquiry, if the

respondents found that the petitioner is guilty of those irregularities

and illegalities, then the action of compulsory retirement be taken

against him, to which the sanction was accorded in the said

resolution. It is not under dispute that on the date of passing

resolution no.29 dated 29/07/2004, petitioner has completed 30

years service with respondent no.1 and 2, but before passing such

resolutions, his Annual Confidential Reports were not appeared to be

scrutinized by respondent no.1 and 2. In the light of that, no

alternate remains with us, but to set aside the resolution dated

29/07/2004 challenged by way of prayer clause "B" to the petition.

At the same time, the petitioner was promoted to the post of Sr.Clerk

w.e.f. 21/03/1985, so he is entitled for the pay scale of the Sr.Clerk

from that day. Hence petitioner is entitled for the payment in that

scale till the date of his retirement on attaining the age of

superannuation, i.e. till his retirement in due course.

15. During the pendancy of this petition, it appears that the

petitioner has filed Civil Application No.9710/2005, which was

decided vide order dated 19/07/2006, by which respondent no.1 and

2 were ordered to pay Rs.94,321/- towards the payment due to the

petitioner, and issue of interest, if any, to which petitioner is entitled

to, to be decided at the time of final hearing in the main petition.

There is no provision to pay interest on the due amount, hence that

request of the petitioner can not be accepted, but the amount already

paid, while deciding the civil application, will have to be adjusted

while making the due payment to the petitioner. It shall be so

adjusted while making the final payment to him after settlement of

the account assuming that he continued to work on the post till date

of the superannuation.

16. In the result, the petition is partly succeed as indicated above,

and stands disposed of with no order as to costs. Rule made

absolute accordingly.

           (A.V.POTDAR, J.)                           (V.R.KINGAONKAR, J.)




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