STATE OF GUJARAT Vs. DHIRAJLAL HARILAL OZA

JUDGEMENT

(1.) Being aggrieved by the judgment and order dated 30.4.1994 in Regular Civil Appeal No. 62 of 1988 by the Assistant Judge, Surat dismissing the appeal and confirming the judgment and decree dated 30.6.88 in Regular Civil Suit No. 282 of 1984, the appellants-original defendants have filed the present Second Appeal.

(2.) The respondent-plaintiff was born on 8.1.1932. He was selected as class-II Gazetted Officer in Bombay Forest Service and he joined on 2.4.1957 as Assistant Conservator of Forests. He was promoted as Class-I Gazetted Officer on 15.1.1962 in Gujarat Forest Service. The Review Committee submitted its report on 5.7.83 recommending the name of the respondent-plaintiff for premature retirement. The recommendation was made to the Government accordingly. The Chief Secretary to the Government, after perusing all the papers and forthwith decided to give premature retirement the plaintiff. The notice of premature retirement was given on 21.11.1983 by Bindu Gamit, Under Secretary to the Government, Agriculture and Forest Department wherein it is written as under:

(3.) The respondent filed Regular Civil Suit no.282 of 1984 in the Court of the Joint Civil Judge (S.D.) and Chief Judicial Magistrate, Surat challenging the notice of premature retirement for a declaration and permanent injunction. The Trial Judge framed as many as 10 issues, after going through material and evidence held that the plaintiff has proved that Ms. Bindu Gamit, the then Under Secretary has no authority to send the impugned notice. The trial court also held that the plaintiff has failed to show that Khanchandani and Karamchandani were hostile to him and at their instance, premature retirement notice was issued to the plaintiff. The trial court also held that the plaintiff was not directly recruited as class-I officer, hence he cannot be prematurely retired under the relevant rules. It has also been held by the trial court that before disposal of the departmental inquiry pending against the respondent-plaintiff, the defendants cannot issue notice of premature retirement of the plaintiff. It has also been held that the respondent-defendant was not given option for voluntary retirement under rule 161(aa)(ii). It is a condition precedent for the Government to issue a confidential letter in which the plaintiff ought to have been informed that the Government has decided to retire him prematurely and whether the plaintiff wants to retire voluntarily or not and in absence of such notice, the impugned notices exhs. 67 and 107 are illegal. The suit was not bad for want of statutory notice under section 80 of the Civil Procedure Code. The Court has jurisdiction to entertain the suit. It was also held that the plaintiff failed to prove that the defendants have committed breach of injunction and thereby committed contempt of court. The trial court also found that the decision taken by the Reviewing committee on 5.7.83 regarding premature retirement of the plaintiff suffers from having no material, without any cogent reasons and arbitrariness. Hence, the impugned notice issued by the defendants is illegal, void, inoperative and unconstitutional and against principles of natural justice. The plaintiff succeeded in proving that he should be deemed to be continued in service from 5.7.84 onwards and he is entitled for all consequential reliefs, pay, admissible allowances etc.