HAJI HAMIDKHAN RAHEMANKHAN PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) CORAM : MR. <JGN>J.B.Pardiwala</JGN> <ADV>Bharat T.Rao,Krutik Parikh,H.S.Munshaw</ADV> <AT>Special Civil Application No. 25358 of 2007.</AT> <SI>[A] SERVICE LAWS - PENSION - <ACT>Constitution Of India</ACT>- <S>Art.311</S>- <ACT>Gujarat Civil Services (Pension) Rules, 2002</ACT>- <S>R.77</S>, <S>R.78</S>and <S>R.79</S>- <ACT>Gujarat Civil Services (Discipline And Appeal) Rules, 1971</ACT>- <S>R.6</S>- Petitioner was dismissed from service for misconduct on the ground of unauthorized absence without leave - Upon representation, dismissal was converted into compulsory retirement - Despite order of compulsory retirement, the Government sanctioned and paid pension which later on was ordered to be stopped - Held, as the compulsory retirement was by way of punishment and it was not in public interest, petitioner is not entitled to a regular pension - However, petitioner is entitled to the compassionate pension in accordance with the Rules - Grant of compassionate pension is within the discretion of the State Government and not an absolute right - It is further held that there shall be no recovery of any access amount which has been paid to the petitioner towards regular pension. Having heard the learned Counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the writ applicant is entitled to receive regular pension under the Pension Rules 2002. (Para 10) Thus, the order passed by the Director, Agriculture, referred to above, is plain and simple. The only indulgence shown to the writ applicant was that instead of dismissing the writ applicant from service, it thought fit to pass the order of compulsory retirement, but by way of punishment. This should put to an end to the entire controversy. In theorder referred to above, at no place it has been stated that the compulsory retirement is in the form of premature retirement in public interest. (Para 13) Since the order of punishment was substituted by an order of compulsory retirement, the case of Shri Parekh would also be covered by Rules 77, 78 and 79 of the Pension Rules 2002. (Para 27) All other decisions, on which reliance has been placed, are of no consequence to the writ applicant. They are all on compulsory retirement in public interest and not byway of punishment. The order of compulsory retirement in public interest is passed if the employee concerned is found to be a dead­wood having lost his utility purpose. (Para 28) The case in hand is not one of a compulsory retirement in public interest, but the same is by way of punishment. (Para 29) In view of the above, I have no hesitation in coming to the conclusion that the writ applicant is not entitled to receive the regular pension, but is only entitled to the compassionate pension in accordance with the rules referred to above. (Para 30) In the result, this writ application fails and is hereby rejected. However, it is clarified that there shall be no recovery of any excess amount which has been paid to the writ applicant by way of regular pension. The Authority concerned shall now consider the grant of the compassionate pension to the writ applicant in accordance with the rules, which have been referred to above. Such order of compassionate pension shall be passed within a period of four weeks from the date of the receipt of this order. (Para 31) [B] SERVICE LAWS - COMPULSORY RETIREMENT - <ACT>Constitution Of India</ACT> - <S>Art.226</S>and <S>Art.311</S>- Compulsory Retirement - Meaning and Scope - Scope of Judicial Review - The compulsory retirement in the service jurisprudence has two meanings - Under various disciplinary Rules, the compulsory retirement is one of the penalties inflicted on the delinquent which involves stigma and cannot be inflicted accept by following the procedure prescribed by the relevant rules - When the Government or the appropriate Authority has an absolute right to retire Government Servant on his attaining a particular age or on his attaining number of year service or there is a formation of opinion that in the public interest it is necessary to compulsorily retire a Government servant, in such cases, it is neither a punishment nor a penalty with the loss of retiral benefits - So long as the opinion forming the basis of the order for compulsory retirement in public interest is formed bonafide, the opinion cannot be ordinarily interfered with by judicial forum - Such an order may be subjected to judicial review on very limited grounds. The compulsory retirement in the service jurisprudence has two meanings. Under the various disciplinary rules, the compulsory retirement is one of the penalties inflicted on a delinquent Government servant consequent upon a finding of guilt being recorded in the disciplinary proceedings. Such penalty involves stigma and cannot be inflicted except by following the procedure prescribed by the relevant rules or consistently with the principles of natural justice if the field for inflicting such penalty be not occupied by any rules. Such compulsory retirement in the case of a Government servant must also withstand the scrutiny of the Article 311 of the Constitution. Then there are service rules, such as Rule 56(j) of the Fundamental Rules, and Rule 10 of the Gujarat Civil Services (Pension) Rules, 2002 which confer on the Government or the appropriate Authority, an absolute (but not arbitrary) right to retire a Government servant on his attaining a particular age or on his having completed a certain number of years of service on formation of an opinion that in public interest it is necessary to compulsorily retire a Government servant. In that case, it is neither a punishment nor a penalty with the loss of retiral benefits. (Para 23)</SI> <FV>Application rejected</FV> <RC>Krushnakant B. Parmar V. Union Of India, 2012 3 SCC 178</RC><RCG>REFERRED TO</RCG> <RC>B.S. Shiroi V. Sri Veebhadreshwar Education Society, 2004 13 SCC 619</RC><RCG>REFERRED TO</RCG> <RC>Hussaini V. Hon'ble Chief Justice Of High Court Of Judicature At Allahabd, 1985 1 SCC 120</RC><RCG>REFERRED TO</RCG> <RC>State Of Gujarat V. Umedbhai M. Patel, 2001 2)GLH 175</RC><RCG>REFERRED TO</RCG> <RC>State Of Gujarat V. Narendra Kumar V. Parikh, 2005 4 GLR 3383</RC><RCG>REFERRED TO</RCG> <RC>Nawal Singh V. State Of U.P, 2003 8 SCC 117</RC><RCG>REFERRED TO</RCG> <RC>Union Of India V. Collector J.N Sinha, 1970 2 SCC 458</RC><RCG>REFERRED TO</RCG> <RC>Darshana R. Dave V. State Of Gujarat, 2006 2 GLH 55</RC><RCG>REFERRED TO</RCG> <RC>Baikuntha Nath Das V. Chief District Medical Officer, Baripada, 1992 2 SCC 299</RC><RCG>REFERRED TO</RCG> <RC>R.C. Chandel V. High Court Of M.P, 2012 8 SCC 58</RC><RCG>REFERRED TO</RCG> <RC>Bihar Co­Operative Development Cane Marketing Union Ltd. V. Bank Of Bihar, 1967 1 SCR 848</RC><RCG>REFERRED TO</RCG> <RC>Shyamlal V. State Of U.P, 1955 1 SCR 26</RC><RCG>REFERRED TO</RCG> <RC>Brijmohansingh Chopra V. State Of Punjab, 1987 2 SCC 188</RC><RCG>REFERRED TO</RCG> <RC>Ramchandra Raju V. State Of Orissa, 1994 SUPPLE 3 SCC 424</RC><RCG>REFERRED TO</RCG> <RC>Baikunthnath Das And Anr. V. Chief District Medical Officer, Baripada And Anr, 1992 2 SCC 299</RC><RCG>REFERRED TO</RCG> <RC>Bishwanath Prasad Singh V. State Of Bihar, 2001 2 SCC 305</RC><RCG>REFERRED TO</RCG> <JT> <PARA> CORAM : MR. <JGN>J.B.Pardiwala</JGN> 1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs : -

(2.) The case of the writ applicant may be summarized as under : -

(3.) On 24th January 2008, the following order was passed : -