1999 Supreme(Guj) 634

Gujarat High Court
Judgename :M.R.CALLA
NARENDRAKUMAR V.PARIKH - Appellant
Versus
STATE - Respondent
S.C.A. 5036 of 1991
Decided On : 11/18/1999

Headnote:(a) Service & Employment — Compulsory retirement — Considering the uncommunicated adverse remark — Held, this circumstance by itself cannot render any infirmity to the order — Bombay Civil Services Rules, 1959 — Clause (aa)(i)(1) of Rule 161(1) — Compulsory retirement.

       The grievance raised by the petitioner that uncommunicated adverse remarks could not be taken into consideration may not detain this Court any more in view of the law laid down by the Supreme Court in the decision reported in AIR 1994 SC 1261 (Union of India vs. V.P. Seth), a decision which had been rendered by a Bench of three Judges of the Supreme Court. In para 2 of the judgment, the Supreme Court after taking note of the earlier decisions reported in (1992) 2 SCC 299 (Baikuntha Nath Das vs. Chief District Medical Officer, Baripada) and in (1992) 2 SCC 317 (Posts and Telegraphs Board vs. C.S.N. Murthy), has held that uncommunicated remarks can certainly be considered for the exercise of powers of compulsory retirement.

       [Para 10]

       (b) Service & Employment — Compulsory retirement — Communication of adverse remark during probation — Contention that even of conveyed to petitioner they could not have been taken into consideration by committee — Held, it does not lend to any infirmity in the consideration of petitioners case for compulsory retirement.

       So far as the grievance regarding the communication of adverse remarks during the period of probation that the same should have been kept in sealed cover and that by communicating the same the Government Resolution dt. 30.3.1989 had been violated is concerned, I find that if any adverse remark is recorded and the same is conveyed to an employee, it does not prejudice the employee in any manner whatsoever. On the contrary if the same are kept in sealed cover and the employee is not made known of those remarks, an employee may have a grievance that the same were not conveyed though they were adverse. In this view of the matter, the grievance with regard to the violation of the Government Resolution dt. 30.3.1989 is wholly misconceived and is illusory and on that ground it cannot be said that these adverse remarks should not have been conveyed to the petitioner and even if conveyed they could not be taken into consideration by the Committee on the strength of the Government Resolution dt. 30.3.1989. It does not lead to any infirmity in the consideration of the petitioners case for compulsory retirement and, therefore, this ground raised on behalf of the petitioner has no substance and the same is hereby rejected.

       [Para 9]

       (c) Service & Employment — Compulsory retirement — Malafide — Merely because petitioner had filed complaint on 5.12.1990 no malafides can be presumed because committee had already recommended petitioners compulsory retirement way back in May 1989.

       The impugned order of compulsory retirement on facts cannot be held to be malafide merely because the petitioner had filed a complaint on 5.12.1990 and in the facts of this case I find much force in the argument of Mr. Oza that the Committee had already recommended the petitioners compulsory retirement way back in May 1989, and merely because the order was issued in June 1991 it cannot be said that the order of compulsory retirement was an outcome of petitioners complaint, which was filed in December 1990.

       [Para 11]

       (d) Service & Employment — Compulsory retirement — Pendency of Departmental inquiry and in the body of impugned order mentioning of the fact that pending inquiry shall continue — In the backdrop order of compulsory reitrement punitive and stigmatic — Impugned order Dt. 19.6.1991 cannot be sustained — Quashed & set aside.

       True it is that in normal course an order of compulsory retirement is neither punitive nor it cannot be said that it entails any penal consequences as such because the order of compulsory retirement on the ground of public interest does not deprive an employee any of his earned benefit, but the law is equally settled that in the facts of a given case if it is made to appear before the Court that the order of compulsory retirement is only a cover and in fact the order is founded on misconduct and that it has been passed only by short circuiting the procedure of inquiry or it is otherwise made to appear before the Court on the basis of the circumstances attendant and proceding to the passing of the order of compulsory retirement that in fact the allegations of misconduct formed the heart and soul of the compulsory retirement, the form of the order is not conclusive and we have to go the substance rather than the form and the Court has a right to unveil, remove the cover to examine the real nature of the order and for that purpose the Court can go behind the order also so as to determine the true nature of this order.

       In the facts of the present case, it is not simply a case in which the order of compulsory retirement has been passed during the pendency of the inquiry and, therefore it should be set aside, but it goes a step further becuase it is found and verified as a matter of fact on the basis of the position held out on behalf of the respondent itself that the charges and allegations, which were the subject matter of inquiry, were taken into consideration by the Committee, which considered the petitioners case for compulsory retirement on 31.5.1989 and it also took into consideration the allegations, which formed the subject matter to ACD inquiry, which was pending at that time and in which nothing was found against the petitioner subsequently. Therefore, the facts of this case go a step further beyond the mere factum of pendency of inquiry and it stands verified as a question of fact that this order of compulsory retirement is founded on allegations of misconduct and, therfore, it is certainly an order punitive in nature and the same cannot be sustained in the eye of law.

       Taking into consideration the facts and circumstances of this case in its entirety, this Court has no hesitation in holding that the impugned order dt. 19.6.1991 is a punitive order, it seeks to cast aspersion or stigma against the petitioner, the order is founded on allegations of misconduct and it cannot be said that this order is based on a plain and simple appraisal of his ACRs only. In such circumstances, this Court finds that the impugned order cannot be sustained in the eye of law.

       [Para 12]