Gujarat Housing Board vs Jagdishkumar Jashvantlal Mehta
2024 Latest Caselaw 8714 Guj

Gujarat High Court

Gujarat Housing Board vs Jagdishkumar Jashvantlal Mehta on 17 September, 2024

Author: A.S. Supehia

Bench: A.S. Supehia

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                             C/LPA/1334/2024                            JUDGMENT DATED: 17/09/2024

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                        R/LETTERS PATENT APPEAL NO. 1334 of 2024
                                     In R/SPECIAL CIVIL APPLICATION NO. 16633 of 2016
                                                           With
                                        CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
                                       In R/LETTERS PATENT APPEAL NO. 1334 of 2024

                        FOR APPROVAL AND SIGNATURE:

                        HONOURABLE MR. JUSTICE A.S. SUPEHIA
                        and
                        HONOURABLE MRS. JUSTICE MAUNA M. BHATT
                        ==========================================================
                        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           No
                              the 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 ?

                        ==========================================================
                                                 GUJARAT HOUSING BOARD
                                                          Versus
                                         JAGDISHKUMAR JASHVANTLAL MEHTA & ORS.
                        ==========================================================
                        Appearance:
                        MR YN RAVANI(718) for the Appellant(s) No. 1
                        MR DIPAK R DAVE(1232) for the Respondent(s) No. 1
                        ==========================================================

                            CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                                  and
                                  HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                                                    Date : 17/09/2024
                                                    ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

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1. Admit. Mr.Dipak Dave, learned advocate waives service of notice of admission on behalf of respondent.

2. The present appeal emanates from the judgment and order dated 11.01.2024 passed by the learned Single Judge allowing the writ petition by setting aside the orders dated 08.05.2015 as well as the order dated 14.07.2016 of compulsory retiring the respondent by way of public interest. At the outset, we have examined the order dated 08.05.2015 by which, the respondent have been compulsorily retired from service after attaining the age of 55 years. The impugned orders do not refer to any provision of law.

3. Be that as it may, the same refers to some Government Resolutions dated 28.07.1987 and 12.02.2004 which empower the Government to retire the employee after attaining the age of 50 or 55 years by way of public interest in case his service records demands his/her compulsory retirement.

4. Mr. Y.N.Ravani, learned advocate for the appellant has submitted that there were serious allegations levelled against the respondent which are referred by the appellant along with the Appendix of the noting dated 08.05.2015 of the Committee comprising of five members. He has referred to such noting and submitted that the allegations which were considered by the Committee pertain to various irregularities as mentioned

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therein. Thus, it is submitted that it was necessary for the appellant to compulsory retire the respondent from service.

5. Learned advocate for the appellant further has submitted that the learned Single Judge has placed reliance on the judgment dated 22.12.2021 passed by the Division Bench in Letters Patent Appeal No.276 of 2017 of this Court in the case D.M.Patel vs. Housing Commissioner. He has submitted that the subsequent order of the Division Bench was assailed before the Supreme Court by filing SLP (C) No.9222 of 2022 and the Supreme Court by the order dated 27.09.2023, has altered the amount of back wages. Further reliance has been placed by learned advocate Mr. Ravani on the decision of the Coordinate Bench of this Court in the case of Mahesh Chandulal Vora vs. State of Gujarat, 2016(4) GLR 3148 and has submitted that in fact, the Confidential Reports of the respondent were not available as he has not filed the self-appraisal report. Thus, it is submitted that the order passed by the learned Single Judge may be quashed and set aside.

6. Per contra, learned advocate Mr. Dave has submitted that the judgment and order passed by the learned Single Judge may not be interfered with as same is precisely passed. While placing reliance on the decision of the Supreme Court in the case of State of Gujarat vs. Umedbhai M.Patel, (2001) 3 SCC 314, it is submitted that the appellant has in fact instead of

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holding a regular departmental inquiry have illegally retired the respondent from service by way of public interest. It is submitted that the Confidential Reports of the respondent were not taken into consideration while passing the orders as the same were not available. Thus, it is urged that the appeal may be rejected.

7. We have heard the learned advocates appearing for the respective parties. It is not in dispute and in fact admitted by the appellant that the respondent was compulsorily retired from service in view of serious irregularities alleged against him. Such allegations are referred by the Committee in their noting dated 08.05.2015.

8. Thus, the respondent has been compulsorily retired by way of public interest on the ground of some irregularties which are considered by the Committee. It is also not in dispute that no Confidential Reports were available when the order of compulsory retirement has been passed. At this stage, it would be apposite to refer to the observations made by the Supreme Court in the case of Umedbhai M. Patel (supra). The Supreme Court has an occasion to refer to the Rule 161 (1)(aa)

(i) of Bombay Civil Services Rules, 1969 which empowers the State Government to compulsory retire an employee from services. It is also admitted by learned advocate Mr.Ravani that the appellant is also governed by the State Government

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Rules. The Supreme Court has summarized the principles relating to the law of compulsory retirement, the same are as under:

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

12. In the instant case, there were absolutely no adverse entries in respondent's confidential record. In the rejoinder filed in this Court also, nothing has been averred that the respondent's service record revealed any adverse entries. The respondent had successfully crossed the efficiency bar at the age of 50 as well 55. He was placed under suspension on 22.5.1986 pending disciplinary proceedings. The State Govt. had sufficient time to complete the enquiry against him but the enquiry was not completed within a reasonable time. Even the Review Committee did not recommend the compulsory retirement of the respondent. The respondent had only less than two years to retire from service. If the impugned order is viewed in the light of these facts, it

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could be said that the order of compulsory retirement was passed for extraneous reasons. As the authorities did not wait for the conclusion of the enquiry and decided to dispense with the services of the respondent merely on the basis of the allegations which had not been proved and in the absence of any adverse entries in his service record to support the order of compulsory retirement, we are of the view that the Division Bench was right in holding that the impugned order was liable to be set aside. We find no merit in the appeal, which is dismissed accordingly. However, three months' time is given to the appellant-State to comply with the directions of the Division Bench, failing which the respondent would be entitled to get interest at the rate of 18% for the delayed payment of the pecuniary benefits due to him .

9. Serial No.6 of the aforesaid principles asserts that the order of compulsory retirement shall not be passed as a short cut to avoid departmental inquiry when such course is more desirable. Indubitably in the present case, the appellant has adopted a short-cut in compulsorily retiring the respondent by way of public interest instead of holding a regular departmental inquiry under the Rules for the alleged irregularities. Except the alleged irregularities, there was no material available with the appellant to compulsory retire him from service by way of public interest.

10. We do not find any infirmity or illegality in the order passed by the learned Single Judge. Hence, the appeal fails and is dismissed. So far as the order of the Supreme Court dated 27.09.2023 in case of D.M.Patel (supra) is concerned, the same would not have any bearing on the present case. The judgment in the case of Mahesh Chandulal Vora (supra) on which the reliance is placed by the appellant will also not

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apply in the facts of the present case as the same refers to order of compulsory retirement which has been passed by declaring the employee as dead wood. In the present case, there is no such findings recorded by the Committee.

11. At this stage, Mr.Ravani, learned advocate for the appellant has submitted that the order of the learned Single Judge may be allowed to be complied within a period of six weeks. The request is acceded to. The benefits arising from the order passed by the learned Single Judge shall be paid to the respondent within a period of six weeks.

12. Consequentially, the Civil Application also stands disposed of.

(A. S. SUPEHIA, J)

(MAUNA M. BHATT,J) NAIR SMITA V./12