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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
N.V. ANJARIA, SANDEEP N. BHATT, JJ.
GUJARAT HOUSING BOARD – Appellant
Versus
D.M. PATEL – Respondent
Letters Patent Appeal No. 276 of 2017, Special Civil Application No. 9045 of 2002
Decided On : 22-12-2021
Gujarat Housing Board Act, 1961 – Bombay Civil Services Rules – Clause 161(1) –Letters Patent Appeal under Clause 15 of Latent Appeal is directed against judgment whereby learned Single Judge allowed Special Civil Application of respondent herein-original petitioner – Order passed by respondent came to be set aside and respondents were directed to give all consequential benefits to petitioner within time bound period – Held, Absence of adverse entries in service record of petitioner facing charge-sheet, would render order of compulsory retirement punitive and exercise leading to passing of order to be vitiated – Single set of allegation for which departmental inquiry is held but not concluded or isolated incident of criminal case against government employee, could not have been basis for taking action of compulsory retirement when past record of employee is clean, on ground that employer wanted to weed out dead wood – For all aforesaid reasons, impugned order of compulsory retirement passed against respondent employee is not sustained in eye of law – Impugned order of learned Single Judge could be said to be eminently legal in allowing petition and in quashing order of compulsory retirement – Appeal dismissed.
JUDGMENT :
N.V. ANJARIA, J.
1. Heard learned advocate Mr. Y.N. Ravani for the appellant and learned advocate Mr. Dipak Dave for the respondent.
2. This Letters Patent Appeal under Clause 15 of the Latent Appeal is directed against judgment dated 8.9.2011 whereby learned Single Judge allowed the Special Civil Application of respondent herein-original petitioner. Order dated 11.1.2001 passed by respondent came to be set aside and the respondents were directed to give all consequential benefits to the petitioner within time bound period.
3. What was prayed in the Special Civil Application was to set aside order dated 11.1.2001 whereby the petitioner was ordered to be retired premature. It was prayed to declare the said order of compulsory retirement to be illegal and reinstate the petitioner with full backwages and continuity of service.
3.1 The petitioner joined the services as Junior Assistant in the appellant Gujarat Housing Board in July, 1978. In August, 1996. Pending the criminal proceedings and the departmental inquiry, the petitioner came to be suspended for alleged poor construction which he supervised. The charge-sheet was issued and departmental inquiry on the charge of poor quality construction work was initiated. It was the grievance of the petitioner that in respect of the incident of 1990, the charge-sheet was served in the year 1997, which was after seven years. On 11.1.2001, the petitioner was made to retire prematurely under Clause 161(1) of the Bombay Civil Services Rules.
3.2 It was stated that even though the departmental inquiry and the criminal trial in respect of the charges were continued, the petitioner was further ordered to be retired compulsorily on 11.1.2001. It was further averred that alongwith the petitioner, five employees named in paragraph No. 2 of the memorandum of the petition were suspended pursuant to the similar type of charges in relation to the same work. Three co-accused named Mr. N.K. Modi, Supervisor, Mr. A.K. Makwana, Work Assistant and Mr. Gheewala, Junior Assistant came to be reinstated by the authorities and their suspension was also revoked. They had been facing similar charges, stated the petitioner. It was contended that the petitioner was entitled to similar treatment, however, he was subjected to the order of compulsory retirement.
3.3 Contesting the petition by filing affidavit-in-reply the respondents mentioned that the charge-sheet dated 9.9.1997 in respect of the construction defects and for his negligent acts towards construction work. It was stated that the conduct on part of the petitioner caused serious defects in the construction. It was thereafter stated that as per the policy resolution, the case of such employees who had attained fifty years or more were to be reviewed and after examining the confidential reports of such employees, order dated 11.1.2001 of retiring them prematurely was passed under the Rules, giving them the three months pay in lieu of notice. It was thereafter contended that the order of premature retirement by respondent authorities had nothing to do with departmental inquiry. It was averred that the premature retirement order was passed after considering the confidential report.
3.4 Precisely stated, the following averments were made in the affidavit:
4. Assailing the judgment and order of learned Single Judge, it was submitted on behalf of the appellant that learned Single Judge failed to appreciate in right perspective with reference to the facts, the principles regarding the compulsory retirement. It was submitted on th
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