S.K. Tadvi vs State Of Gujarat
2022 Latest Caselaw 734 Guj

     C/SCA/5891/2008                                       ORDER DATED: 21/01/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 5891 of 2008
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                                     S.K. TADVI
                                       Versus
                            STATE OF GUJARAT & 1 other(s)
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Appearance:
MR MANOJ SHRIMALI(2331) for the Petitioner(s) No. 1
MR KM ANTANI, AGP for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                                     Date : 21/01/2022

                                      ORAL ORDER

1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the two concurrent orders passed by the respondent authority and to be precise, following reliefs are prayed:-

(A) Be pleased admit this petition and YOUR LORDSHIPS may be further pleased to issue a writ of mandamus and/or a writ of certiorari other appropriate quashing and setting aside dated 11.01.2007 passed by respondent No.2 whereby the petitioner was down graded in pay-scale of Rs.5800/- to the pay scale of Rs.5600/- with effect from 01.01.2007 and was further ordered to stop all subsequent increments with future effect (permanently) at Annexure-B as well as the order dated 27.02.2007 passed by respondent No.2 whereby the petitioner came to be made compulsorily retired from service with effect from 28.02.2007 AOH at Annexure-D as well as the order dated 21.08.2007 passed by respondent No.1 dismissing the appeal preferred by the petitioner against the order of compulsory retirement issued by respondent No.2 at Annexure-F and be further pleased to direct the respondents to reinstate the petitioner on his original post with back wages and with all consequential benefits including arrears;

(B) That pending the hearing and final disposal of this petition, be pleased to stay the operation, execution and implementation of the impugned order dated 11.01.2007 passed by respondent No.2 whereby the petitioner was down graded in pay scale from the pay-scale of Rs. 5800/ to the

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pay scale of Rs.5600/ with effect from 01.01.2007 and it was further ordered increments to stop all subsequent annual increments with future effect (permanently) at Annexure-B as well as the order dated 27.02.2007 passed by respondent No.2 whereby the petitioner came to be made compulsorily retired from service with effect from 28.02.2007 AOH at Annexure-D as well as the order dated 21.08.2007 passed by respondent No.1 dismissing the appeal preferred by the petitioner against the order of compulsory retirement issued by respondent No.2 at Annexure-F;

(C) That pending the hearing and final disposal of this petition, YOUR LORDSHIPS be pleased to direct the respondents to permit the petitioner to resume his duties on his original post and permit him to perform his duties without any obstruction or interference and be further pleased to direct the respondents to pay salary to the petitioner regularly with all benefits attached to the salary in accordance with law;

(D) Any other appropriate relief deemed just, fit and proper, may pleased be granted in the interest of justice.

2. The case of the petitioner is that the petitioner belonged to Adivasi community and was appointed as Surveyor in Land Record Department on 10.5.1974. Thereafter, he was promoted to the post of Maintenance Surveyor on 20.4.2001. The petitioner was served with a notice dated 13.6.2005, seeking explanation about the irregularities/ defects found during the inspection and in connection with that, the petitioner was served with a charge-sheet dated 30.9.2005. The petitioner replied on 7.4.2006 and having found that the explanation is not satisfactory, it was decided to conduct a departmental inquiry and after granting full opportunity to the petitioner, the Inquiry Officer submitted his report on 11.9.2006 and out of four charges leveled against the petitioner, two charges have been held to be proved. Subsequent to that, for the purpose of inflictment of major penalty, a notice was given on 16.10.2006 and after considering the stand of the petitioner, an order came to be passed on 11.1.2007, whereby the petitioner was

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downgraded in pay scale from pay scale of Rs.5800/- to the pay scale of Rs.5600/- with effect from 1.1.2007 and it was decided to stop all subsequent increments with future effect. The said order having been passed under Rule 6(4) of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971. Feeling aggrieved by the same, the petitioner submitted his representation on 20.2.2007, requesting the respondent No.1 to review the order of penalty. It is the case of the petitioner that thereafter, on 27.2.2007, suddenly, an order came to be passed retiring compulsorily the petitioner from services with effect from 27.2.2007 in exercise of power under Rule 10(4)(5) of Chapter-III of the Gujarat Civil Services (Pension) Rules, 2002 and, along with that, three months' pay has been paid in lieu of notice.

3. Against this action initiated by the respondent authority, the petitioner made representation on 28.3.2007 reiterating again that the action may be recalled, but no attention was paid to, as a result of that, the petitioner was constrained to prefer an appeal on 28.5.2007. It is the case of the petitioner that the respondent No.1 without considering the stand of the petitioner and relevant documents, was pleased to dismiss the appeal on 21.8.2007, which has resulted in serious prejudice to the petitioner and as a result of this, feeling aggrieved by and dissatisfied with the said action of the respondent authority, both the impugned orders, as stated above, have been made the subject matter of the present petition for assailing the same.

4. The petition was admitted after bi-parte hearing on 18.6.2008 and later on, came to be placed for hearing from time to time and thereafter, it has come up for consideration upon completion of the pleadings for final hearing.

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5. Learned advocate Mr. Manoj Shrimali appearing on behalf of the petitioner has contended that the impugned orders passed by the respondent authorities are not only unjust and arbitrary but not sustainable in the eye of law. It has been contended that the charges which have been leveled against the petitioner, out of which, two charges have not been proved, and those charges which have been proved were very trivial in nature and as such, according to Mr. Shrimali, the order of compulsory retirement and the penalty, as indicated above, are not just and proper and are disproportionate to the gravity of charges. Mr. Shrimali has further submitted that by inflicting penalty, the authority appears to have acted highhandedly inasmuch as the impugned order of penalty came to be passed and simultaneously, within a very short period, another order came to be passed retiring compulsorily the petitioner from services and as such, under the garb of public interest, the authority has shown arbitrariness which deserves to be corrected.

6. Learned advocate Mr. Shrimali has further contended that there is nothing on record to permit the authority to act in public interest and as such, the orders which have been passed are suffering from vice of principles of not only the natural justice but also suffering from vice of non-application of mind.

7. Learned advocate Mr. Shrimali has further submitted that in view of the policy framed by the Government, while reviewing the order or action, normally 8 to 10 years period is required to be considered for the purpose of review. But, here, the respondent No.1 in a highhanded manner has ignored this policy, which has vitiated the very exercise of jurisdiction. It has been submitted that no-doubt, the authority is couched with the power but power always coupled with duty not to act arbitrarily

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and at least, it is expected from the authority that there must be some material evidence to indicate a justification for acting in public interest. In the absence thereof, the very exercise of discretion is uncalled for.

8. Learned advocate Mr. Shrimali has further submitted that under Rule 161, a mandatory procedure is required to be observed which has not been done in the present case and for the purpose of punishing for the very same offence, twice he cannot be punished and as such also, the authority has acted in very harsh manner.

9. To substantiate, learned advocate Mr. Shrimali has pointed out the recent decision of the Coordinate Bench of this Court in the case of Bhupendra K. Khakhar, since deceased through Legal Heirs Vs. The Principal District Judge and 1 Other(s) reported in 2019 (3) GCD 1684 (Guj.) and thereby has reiterated that the action deserves to be quashed and set aside. No other submissions have been made.

10. As against the aforesaid submissions, learned Assistant Government Pleader Mr. K.M. Antani, has vehemently opposed the petition by contending that both the authorities below have examined the case of the petitioner thoroughly and arrived at a concurrent decisions and as such, the same cannot be assailed by the petitioner as if he is absolutely an innocent person. Mr. Antani has contended that during the course of proceedings which have been conducted against the petitioner, proper and adequate opportunity at every stage was given to the petitioner and if on few occasions, the petitioner has not availed by non- cooperating, fault cannot be found of the authority, especially when proper procedure, as required under the Act, has been

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scrupulously observed.

11. Learned Assistant Government Pleader Mr. Antani has further contended that the respondent No.2 has passed an order of compulsory retiring the petitioner in the public interest and the source of such power is very much visible from Rule 10(4)(b) of the Gujarat Civil Services (Pension) Rules, 2002 and further, this Rule has been scrupulously observed while taking action against the petitioner and as such, the authority has acted within four corners of law. It has further been contended that the petitioner has accepted three months' salary on 27.2.2007, might be under protest, but having accepted the same, cannot now turn around and challenge. Even otherwise, the Rules are permitting the respondent authority to retire any employee upon attaining the age of 55 years and since the petitioner had undisputedly attained such age, there seemed to be no violation of any statutory provision nor any legal rights of the petitioner in any manner. On the contrary, according to Mr. Antani, during entire service, the petitioner has earned only one promotion in July 1997 and there are several adverse remarks exhibited on the service record, right from 1974 till 2006 appears to have been examined by the authority and only after such proper application of mind, the action is initiated, which cannot be said to be perverse in any form and further, the petitioner has stated that he is having clean record, which is also not visible from any corner. As a result of this, two concurrent findings of fact may not be disturbed in equitable jurisdiction of this Court. Mr. Antani has further contended that there is no dispute that the petitioner is belonging to Adivasi community, but at the same time, the said banner may not permit the petitioner to seek any undue sympathy. On the contrary, the case has been examined even by the reviewing authority, which also found no favour with

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the petitioner and it has further been clearly indicated and agitated that the impugned order of premature retirement is not passed only because of the penalty which has been inflicted upon, but overall service record in the public interest is evaluated and the appointing authority has thought it fit to retire the petitioner from services and when that be so, the conscious decision of the authority may not be disturbed in the interest of justice.

12. Learned Assistant Government Pleader Mr. Antani has further submitted that the decision delivered by this Court in Letters Patent Appeal No.885 of 1999 in Special Civil Application No.5036 of 1991 in which it has been clearly propounded that, "The law pertaining to compulsory retirement of a Government servant in the public interest has been well-settled. In the matter of U.P. and Another (supra), the said law has been reiterated and it is observed that, 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 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. By considering this, the Hon'ble Court has further propounded that:

"(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) The order of compulsory retirement shall

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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)

13. Learned Assistant Government Pleader has further submitted that there is hardly any merit in the petition to grant any of the reliefs. By referring to the relevant resolution of the Government, relating to premature retirement of a Government servant issued under Clause-AA of Rule 161(1) of BCSR, a procedure which has been formulated has been observed by the authority including the procedure which is meant for seeking review and after referring to Page-116 onwards, it has been contended that there is hardly any case made out by the petitioner to call for any interference.

14. To substantiate his contentions, learned Assistant Government Pleader Mr. Antani has relied upon the following decisions:-

(1) In the case of Oriental Bank of Commerce & Another Vs. R.K. Uppal reported in (2011)8 SCC 695;

(2) In the case of Dharampal Satyapal Limited Vs. Deputy Commissioner of Central Excise, Gauhati & others reported in (2015)8 SCC 519.

After referring to these, a contention is reiterated to dismiss the petition.

15. Having heard learned advocates appearing for the parties and having gone through the material on record, it appears that while taking the action against the petitioner, proper procedure is observed by the authority, which is not in dispute. Further, during the course of inquiry, appropriate opportunity has also

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been given to the petitioner and a detailed inquiry report has been submitted before the Disciplinary Authority, who inflicted the penalty and the penalty order dated 11.1.2007 having been perused, it has been found that despite the fact that adequate opportunity was given, the petitioner himself appears to have not availed such at a stage of proposed penalty and for that, even after a lapse of period, it has been indicated that no representation is made by the petitioner and as such, now it is not open for the petitioner to agitate that the authority has acted in an arbitrary manner. On the contrary, the record reflects that full opportunity has been given to the petitioner and only thereafter, the order of penalty came to be inflicted, which in no circumstance can be said to be arbitrary, harsh or suffers from vice of either non-application of mind or perverse in any manner. That being so, the Court is of the opinion that no case is made out by the petitioner to call for any interference.

16. So far as the grievance made by the petitioner with respect to the action being taken abruptly of compulsory retiring the petitioner is concerned no sooner the penalty is inflicted upon, is also not available to the petitioner in view of the chronology of events and the manner in which the petitioner has projected before the authority.

17. It appears from the order of compulsory retirement impugned in the petition that same is exercised in view of the provisions contained in Rule 10(4)(5) of the Gujarat Civil Services (Pension) Rules, 2002 and in consideration of the resolutions and the policy related to it and as such, since the action is taken in public interest, it does not appear to this Court that any case is made out to call for any interference.

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18. This very order was questioned before the reviewing authority as well and it appears that the reviewing authority after due application of mind and after granting appropriate opportunity to the petitioner has passed an order. Hence, there is no procedural irregularity of any nature nor any manifest or material illegality which may permit this Court to quash and set aside the action which is supported by the authority of law.

19. While perusing the record of the case, it appears that the policy related to compulsory retirement, is well defined by the Government Resolution dated 28.7.1987 and as such, when the guidelines which have been issued by the authority have been scrupulously observed, there is hardly any material to indicate that such order deserves to be interfered with.

20. In addition to it, in para 7 of the affidavit-in-reply, a well settled proposition of law pronounced by the Division Bench of this Court in Letters Patent Appeal No.885 of 1999 is also sufficient enough to indicate that the petitioner has not made out any case for interference. Upon overall assessment of the services of the petitioner, the action appears to have been taken by the authority. Hence, this Court would not like to usurp the discretion of the authority by substituting any penalty which has been inflicted.

21. While coming to this conclusion, the Court is also bearing in mind the scope of exercise of jurisdiction under Articles 226 and 227 of the Constitution of India and the parameters which are propounded by catena of decisions. The Court is not in a position to ignore. Hence, in considered opinion of this Court, looking to the scope of extraordinary jurisdiction, this Court is of the view that the decision arrived at by the authorities below are

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not possible to be substituted in the absence of any perversity or violation of the mandate of law. Following are the observations in the case of Garment Craft v. Prakash Chand Goel, reported in AIR ONLINE 2022 SC 27 since considered, the Court deems it proper to quote hereunder:-

18. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. 1 The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd.2 has observed:-

"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of

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law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."

22. Upon overall consideration of the material on record and in view of the decisions which have been cited before the Court by learned Assistant Government Pleader, what was required to be observed in the context of principle of natural justice, the authority has granted adequate opportunity and as such, the entire exercise against the petitioner is well within the said principle and the decision making process appears to be in close conformity with the principle of natural justice and there is hardly any circumstance visible to arrive at a different conclusion that any error is committed by the authority. That being so, the Court is of the considered opinion that no case is made out by the petitioner. Upon close perusal of the decision delivered by the Coordinate Bench of this Court, the facts are slightly on a different footing than the case on hand and as such, no-doubt, the said decision is related to penalty of compulsory retirement but the peculiar background of the present case is not permitting the Court to just apply the same in a mechanical manner. This is more so in view of the fact that for applying the ratio laid down, there must be some substantial similarity of the circumstance, otherwise one additional fact would make a world of difference for applying the said principle. Hence, on overall consideration of the material on record, this Court is of the opinion that the petitioner has not made out any

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case.

23. Apart from the proposition relied by learned Assistant Government Pleader, there is yet another recent decision delivered by the Hon'ble Apex Court, also supporting the conclusion arrived at in the present case by this Court, i.e. in the case of Ram Murti Yadav Vs. State of Uttar Pradesh and Another reported in reported in (2020)1 SCC 801. The relevant observations contained therein are reproduced hereunder:-

6. The service records of the appellant have been examined by the Screening Committee, the Full Court as also by the Division Bench of the High Court. The scope for judicial review of an order of compulsory retirement based on the subjective satisfaction of the employer is extremely narrow and restricted. Only if it is found to be based on arbitrary or capricious grounds, vitiated by malafides, overlooks relevant materials, could there be limited scope for interference. The court, in judicial review, cannot sit in judgment over the same as an Appellate Authority. Principles of natural justice have no application in a case of compulsory retirement.

24. From the aforesaid overall circumstances, the Court is of the opinion that since the petition being merit-less, the same is DISMISSED hereby. Rule is discharged.

(ASHUTOSH J. SHASTRI, J) OMKAR