NATVARLAL HIRALAL WAGHELA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In the present petition, the petitioner has challenged the order/notice dated 8 -1 -1993 by which the Government in exercise of powers under Clause (aa) of sub -rule (1) of Rule 161 of the Bombay Civil Services Rules directed that the petitioner shall retire from service from the date on which the order is delivered to him. The said order also provides that the petitioner shall be paid a sum equivalent to his pay and allowances for three months in lieu of three months notice.

(2.) It is the case of the petitioner that a Special Case No. 15/1989 is pending against him for which he was placed under suspension. The petitioner filed Special Civil Application No. 5387/1992 for a direction that the Government should not proceed with the Departmental Inquiry initiated against the petitioner till final disposal of the Special Case No. 15/1989. In the said Special Civil Application No. 5387/1992, the Assistant Government Pleader made a statement that till the criminal case filed against the petitioner, namely, Special Case No. 15/1989 is not finally concluded, the Departmental Inquiry initiated against the petitioner will not be proceeded with. In view of the said statement of the learned A.G.P., the petitioner withdrew the petition. It is the case of the petitioner that by the impugned order/notice dated 8 -1 -1993, the petitioner is ordered to be prematurely retired from service which according to the petitioner is illegal and unlawful. The petitioner has challenged the said order on various grounds including the ground that the Committee had not applied its mind, and that the impugned order is not a speaking order since no reasons are indicated. The petitioner has also stated that he has not received any adverse remarks and that, therefore, also the decision is improper. The petitioner has also contended that since the Special Case No. 15/1989 is pending in the Special Court at Baroda, the impugned order to retire that petitioner prematurely could not have been passed.

(3.) The respondents have in response to the notice of this Court appeared and filed an affidavit -in -reply dated 31st March, 1993. In the said affidavit, it is contended inter alia that the petitioner has no fundamental right to continue in Government service after completion of 50 years of age and if the Government is of the opinion that petitioner in service such an order can be passed in exercise of powers under Rule 161 of the Bombay Civil Services Rules. It is further stated that the case of the petitioner for being continued beyond the age of 50 years was considered by the Review Committee consisting of the responsible officers of the State Government. The Review Committee having considered the service record of the petitioner, and having given more importance to the record of last 10 years was of the view that the petitioner should be prematurely retired from service as his retention is not in public interest. The recommendations of the Review Committee were duly considered by the Government and the Government having agreed to the recommendations eventually the impugned order came to be passed. 3. In the said affidavit, the respondents have also contended that upon perusal of the relevant service record of the petitioner, it was found that the petitioner was lacking energy and initiative in performance of his duties. He was unable to control his subordinates and his performance was poor. It was also found that his integrity was doubtful. It was also noticed that the petitioner was involved in a corruption case and he was facing prosecution. It was also contended that the petitioner has committed serious financial irregularities, and he was facing inquiry with regard to the same. It was also noticed that an ACB trap was laid pursuant to which the petitioner was caught red -handed. Upon overall perusal of the service record of the petitioner, the Review Committee was convinced that it was not in public interest to continue the petitioner in active service, and the Review Committee, therefore, recommended his premature retirement. It is clarified that the petitioner is not retired from service by way of punishment, and that he will be getting all his retiral benefits as if he had retired in normal course. It is, therefore, contended that the impugned order having been passed not by way of punishment, the same may be upheld.