STATE OF GUJARAT Vs. JETHABHAI D PARMAR

JUDGEMENT

(1.) BY this Appeal under Section 100 of the Code of Civil Procedure, the appellants- original defendants have challenged the judgment and decree passed by both the Courts below whereby, the suit filed by the respondent challenging order of compulsory retirement dated 30.7.1985 was allowed and the order of compulsory retirement was declared as illegal and ineffective and the appellants were restrained permanently from implementing the said order.

(2.) PLAINTIFF filed Regular Civil Suit No.218 of 1985, seeking to declare the order of compulsory retirement passed by defendant No.2 as illegal, unconstitutional and ineffective and for permanent injunction restraining the defendants from preventing the plaintiff from performing his service. It is case of the plaintiff that the plaintiff was serving on the post of Armed Constable. During his service, he fell ill and was examined by the Medical Board. He produced medical certificate in the year 1975 but, the defendants did not give receipt of production of such certificate by the plaintiff and as per the said certificate, the plaintiff was advised to perform light duty. Plaintiff was further required to be admitted in the Government hospital and therefore, the plaintiff had to go on leave from October 1983 to January 1984. For such leave taken by the plaintiff, the higher officer started harassing the plaintiff and the plaintiff was transferred from Rajkot to Gondal Chowky. The plaintiff was not paid salary for the period of leave. Financial position of the family of the plaintiff had worsened and for one or other reasons, defendant No.2 and other officers wanted to remove the plaintiff from service. Therefore, with malafide intention, the plaintiff was served with different charge- sheets at different times and thereafter, the plaintiff was served with notice dated 11.7.1985 asking the plaintiff to show cause as to why the plaintiff should not be compulsorily retired. The plaintiff gave reply but, defendant No.2 passed order dated 30.7.1985 compulsorily retiring the plaintiff from service. The plaintiff has assailed this order of compulsory retirement on different grounds stated in the plaint.

(3.) BOTH the parties have chosen not to lead any oral evidence and they relied on documentary evidence. Learned Trial Judge, on appreciation of the documentary evidence, came to the conclusion that since it was case of the plaintiff that he had handed over the certificate of the Medical Board for giving him light duty to the defendants, the plaintiff was justified to refuse to appear before the Medical Board again as per the order of the defendants and such act on the part of the plaintiff could not be termed as indiscipline or in defiance of the order of the superior officer. Learned Trial Judge also came to the conclusion that Rule 666 of the BCSR could be placed in service only in relation to the matters of leave which can be granted to the employee on medical ground. Learned Trial Judge further observed that the defendants have failed to point out any provision from BCSR to show that the employee seeking light duty on the ground of physical incapacity requires to be referred to the Medical Board. Learned Judge thus came to the conclusion that Inquiry Officer as well as defendant No.2 have committed patent illegality in holding that the plaintiff has disobeyed the orders of superior officer by refusing to appear before the Medical Board and therefore, charges against the plaintiff could not be said to have been proved. On the above-said conclusion, learned Trial Judge allowed the suit and declared the order of compulsory retirement as illegal and ineffective and granted permanent injunction restraining the defendants from implementing the order of compulsory retirement.