Pravinkumar Laljibhai Makwana vs Deputy District Development ...
2022 Latest Caselaw 242 Guj

    C/SCA/13343/2008                                JUDGMENT DATED: 07/01/2022




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


            R/SPECIAL CIVIL APPLICATION NO. 13343 of 2008



FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI                              Sd/-


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1     Whether Reporters of Local Papers may be allowed to                No
      see the judgment ?

2     To be referred to the Reporter or not ?                            No

3     Whether their Lordships wish to see the fair copy of the           No
      judgment ?

4     Whether this case involves a substantial question of               No
      law as to the interpretation of the Constitution of India
      or any order made thereunder ?


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                 PRAVINKUMAR LALJIBHAI MAKWANA
                                Versus
         DEPUTY DISTRICT DEVELOPMENT OFFICER & 1 other(s)
=============================================
Appearance:
MR. SAHIL M SHAH(6318) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1,2
=============================================

    CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                            Date : 07/01/2022
                            ORAL JUDGMENT

[1] By way of this petition under Articles 226 and 227 of

the Constitution of India, the petitioner has prayed for

following reliefs:

C/SCA/13343/2008 JUDGMENT DATED: 07/01/2022

"6. (A) To issue a writ or writs or in the nature of mandamus and / or prohibition and / or any other appropriate writ, or direction or order.

(B) To set aside and quash the order of compulsory retirement and to give the petitioner. The other retired benefit as stated in the Rule 274 of Bombay Civil Services Rule and give other allowances according to law.

(C) To direct the respondent to withdraw the order of validly retired and he be taken back in the service and give all other seniority and other allowances and benefit.

(D) To grant to the petitioner such other reliefs may be deemed fit in the interest of justice.

             (E)         Allow this petition with costs."


[2]      The case of the petitioner is that the petitioner was

serving as Talati-Cum-Mantri at village Golaj Vajeval,

Taluka - Thasara at the time of incident in question. On

account of certain financial irregularities, which have crept

in relating to Sampoorna Grameen Rozgar Yojana and also

relating to the accounts of the Panchayat. A charge-sheet

was submitted and after departmental inquiry, a report

was prepared on 05.10.2004 wherein the charges leveled

against the petitioner were held to be proved. In response

to that, the disciplinary authority had issued a

communication dated 17.11.2005 in the form of show

cause notice, to which the petitioner said to have replied

C/SCA/13343/2008 JUDGMENT DATED: 07/01/2022

and after consultation with the Gujarat Panchayat Service

Selection Board the proposed penalty was indicated and to

that effect the respondent was also served with further

show cause notice. Even, the second show cause notice

also came to be issued calling upon the petitioner as to

why the punishment should not be imposed upon as

reflected in Rule 6 of the Discipline and Appeal Rule. After

considering and after granting opportunity to the

petitioner, ultimately an order of penalty came to be

passed on 31.07.2006 making the petitioner compulsory

retire from the services.

[2.1] Feeling aggrieved by the same, the petitioner

preferred First Appeal before the District Development

Officer, District Panchayat Kheda i.e. respondent No.2

herein who by way of an order dated 20.10.2006 was

pleased to reject the said appeal and it is against that

order even a second appeal was also filed before the

Gujarat Civil Services Tribunal, Gujarat State at

Gandhinagar being Civil Appeal No. 336 of 2006 which

was heard at length by the said Tribunal and appeal filed

by the petitioner came to be rejected vide order dated

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10.12.2007 and it is against this concurrent findings of

facts by all the authorities below, the petitioner has

invoked extraordinary jurisdiction of this Court by way of

present petition.

[3] Mr. Sahil M. Shah, learned advocate appearing on

behalf of the petitioner has vehemently contended that all

the authorities below have not properly considered the

explanation and defence put forth by the petitioner and

the reply which has been submitted has also not been

taken into consideration. It has been submitted that the

reasons are also not assigned sufficient enough to justify

the conclusion arrived at by the authority and in that view

of the matter, the very exercise of discretion undertaken

is ill-founded, hence, the orders are required to be

quashed and set aside. It has further been submitted that

no adequate opportunity was given to the petitioner while

imposing excessive penalty of compulsory retirement and

in that view of the matter, the relief prayed for in the

petition deserves to be granted. No other submissions

have been made.

C/SCA/13343/2008 JUDGMENT DATED: 07/01/2022

[4] To meet with this contention raised by the petitioner,

learned advocate appearing for the respondent Nos. 1 and

2 authority represented by Mr. H. S. Munshaw has

submitted that petition is against three concurrent

findings of facts and as such when the authorities have

exercised their discretion vested in statute after proper

application of mind and after assigning cogent reasons

even if another view is possible, the same may not be

substituted in exercise of extraordinary jurisdiction. It has

been further vehemently contended that during the

course of inquiry, sufficient opportunity was given to the

petitioner and the same is availed of and after inquiry, the

charges leveled against the petitioner has been proved

and as such considering the seriousness of charges and on

account of financial irregularities which have been

established against the petitioner, the order of penalty

came to be passed which is well within the domain of

disciplinary authority. Hence, no extraordinary jurisdiction

be exercised.

[4.1] For the purpose of canvassing this submission, Mr. H.

S. Munshaw, learned advocate has drawn the attention of

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this Court to a detailed affidavit-in-reply filed in the

present proceedings and from the said affidavit, it has

been undisputedly found that at a relevant point of time,

the petitioner has been granted an adequate opportunity

of hearing and further it has been found that the action

has been initiated in close conformity with the provisions

of law applicable.

[4.2] Mr. Munshaw, learned advocate has further

submitted from the further affidavit-in-reply filed on behalf

of respondent No.1 that show cause notice which was

given indicating the proposed penalty was also given

alongwith the inquiry report and after advice of the

Service Selection Board dated 06.03.2006 further notice

on 24.03.2006 has been issued calling upon the petitioner

to show cause as to why the penalty provided under Rule

6 may not be inflicted upon and that show cause notice

was also issued and undisputedly served to the petitioner

under Rule 8 (11) of the Gujarat Panchayat Civil Services

(Discipline and Appeal) Rules, 1997.

[4.3] Mr. Munshaw, learned advocate has further

submitted that even subsequent advice of the Service

C/SCA/13343/2008 JUDGMENT DATED: 07/01/2022

Selection Board was also taken into consideration and for

that also the petitioner was undisputedly given an

opportunity to meet with the same hence, it has been

contended that since at every stage the petitioner was

granted an adequate opportunity of hearing, quantum of

penalty issue is normally left it to the discretion of the

disciplinary authority. Hence, he has requested that

considering the totality of circumstances prevailing on

record, the petition deserves to be dismissed.

[4.4] At this stage, Mr. Munshaw, learned advocate has

drawn the attention to the following decisions delivered by

Hon'ble Apex Court:-

(i) In the case of Secretary, Central Board

of Excise and Customs and Others versus K.

S. Mahalingam reported in (1986) 3 SCC 35.

(ii) In the case of Ram Murti Yadav versus

State of Uttar Pradesh and Another reported

in (2020) 1 SCC 801.

C/SCA/13343/2008 JUDGMENT DATED: 07/01/2022

(iii) In the case of Arun Kumar Gupta versus

State of Jharkhand and Another reported in

(2020) 13 SCC 355.

[5] Having heard learned advocates appearing for the

parties and having gone through the submissions, it

appears prima facie that every authority which has passed

an impugned order against the petitioner has applied its

mind and passed a reasoned order after due compliance

of principles of natural justice. From the reasons, which

are assigned by the authorities, it is quite visible that

there appears to be an application of mind and

consideration of relevant facts which were posted before it

even by the petitioner and as such since the exercise

undertaken by respondent authorities is in close

conformity with principles of natural justice and upon due

consideration of material on record such exercise cannot

be said to be perverse in any form nor suffering from any

patent illegality. In that view of the matter, since the

concurrent finding of facts are involved in the present

proceedings, this Court is of the considered opinion that in

the absence of any distinguishable material it is not

C/SCA/13343/2008 JUDGMENT DATED: 07/01/2022

justifiable to substitute the finding arrived at by the

authorities.

[6] In any case when the charges are of serious nature

and the same have been proved during the course of

inquiry, the said inquiry has been completed after due

compliance of principles of natural justice and the

authorities have while inflicting penalty complied with the

procedure established by law and as such in this

background of facts it is not open for this Court to exercise

extraordinary jurisdiction more particularly when the

serious financial irregularities are established on record.

[7] In addition thereto, it is settled position of law that

judicial review of the High Court is limited to the extent as

propounded by catena of decisions that if the authority

has acted with patent illegality or it reflects any perversity

or arbitrariness in that limited sphere only the said

concept can be pressed into service while setting aside

the decisions questioned in the proceeding. Here in this

case none of the circumstances are visible and as such the

Court is of the opinion that what kind of penalty is to be

C/SCA/13343/2008 JUDGMENT DATED: 07/01/2022

inflicted upon is required to be left it open for disciplinary

authority which in this background of fact rightly exercised

by the disciplinary authority. As a result of this, so far as

quantum of penalty is concerned, the Court is not inclined

to interfere with the same.

[8] The issue of compulsory retirement has been time

and again dealt with by Hon'ble Apex Court in the context

of scope of judicial review and the decisions which are

pointed out by Mr. Munshaw, learned advocate are

sufficient enough to justify that exercise of jurisdiction by

the authority is not ill-founded.

[9] Relevant decision delivered by Hon'ble Apex Court in

a recent time touching to the present controversy is a

decision in the case of Arun Kumar Gupta (Supra)

wherein after analyzing the case law in paragraph 6, the

Hon'ble Apex Court has propounded the principle

governing the compulsory retirement since the principle

has been laid down by considering the series of decisions

only the relevant paragraph is quoted hereunder:

C/SCA/13343/2008 JUDGMENT DATED: 07/01/2022

"6. This Court in Union of India v. Col. J.N. Sinha1 held that compulsory retirement does not involve civil consequences. It also dealt with the issue of what constitutes public interest. The following observations are apposite:

"9. Now coming to the express words of Fundamental Rule 56(j) it says that the appropriate authority has the absolute right to retire a Government servant if it is of the opinion that it is in the public interest to do so. The right conferred on the appropriate authority is an absolute one. That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so. If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts. It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is an arbitrary decision. The 1st respondent challenged the opinion formed by the Government on the ground of mala fide. But that ground has failed. The High Court did not accept that plea. The same was not pressed before us. The impugned order was not attacked on the ground that the required opinion was not formed or that the opinion formed was an arbitrary one. One of the conditions of the 1st respondent's service is that the Government can choose to retire him any time after he completes fifty years if it thinks that it is in public interest to do so. Because of his compulsory retirement he does not lose any of the rights acquired by him before retirement. Compulsory retirement involves no civil consequences. The aforementioned Rule 56(j) is not intended for taking any penal action against the Government servants. That rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases, the Government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no

C/SCA/13343/2008 JUDGMENT DATED: 07/01/2022

denying the fact that in all organizations and more so in Government organizations, there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual Government servant and the interests of the public. While a minimum service is guaranteed to the Government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest.

xxx xx xxx

11. In our opinion the High Court erred in thinking that the compulsory retirement involves civil consequences. Such a retirement does not take away any of the rights that have accrued to the Government servant because of his past service. It cannot be said that if the retiring age of all or a section of the Government servants is fixed at 50 years, the same would involve civil consequences. Under the existing system there is no uniform retirement age for all Government servants. The retirement age is fixed not merely on the basis of the interest of the Government servant but also depending on the requirements of the society." (emphasis supplied) This judgment was followed in State of Gujarat v. Suryakant Chunilal Shah2, wherein this Court dealt with the concept of public interest in great detail."

[10] In view of the aforesaid observations and proposition

laid down by the Hon'ble Apex Court on the issue of

compulsory retirement the facts on hand are not sufficient

enough for this Court to interfere and exercise

extraordinary jurisdiction in favour of the petitioner more

particularly when there is no perversity or arbitrariness is

reflecting. Hence, this Court is not inclined to consider the

request made by the petitioner.

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[11] In the premise aforesaid and in view of the

background of present facts, the Court finds that it is not a

fit case to exercise extraordinary jurisdiction. Resultantly

petition fails and accordingly dismissed. Rule is

discharged.

Sd/-

(ASHUTOSH J. SHASTRI, J.) DHARMENDRA KUMAR