JUDGMENT
Khandeparkar R.M.S., J.
1. Heard the learned Advocates for the parties. Perused the records. Rule. By consent, the Rule is made returnable forthwith.
2. The petitioner challenges the order of compulsory retirement passed by the respondent/Corporation on 29th January, 2004 on the grounds that (i) the action is mala fide as the said order is passed during the pendency Of the appeal preferred by the petitioner against the order imposing punishment in the form of permanent withholding increment for one year; (ii) that certain documents, which were asked for the furnished to the petitioner in the course of inquiry; (iii) that the petitioner was denied promotional opportunity inspite of the fact that the petitioner was due for promotion in the year 1996 as well as in the year 2003. Reliance is sought to be placed in the decisions of the Apex Court in State of Gujarat v. Umedbhai M. Patel, , in Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr., , in State of Gujarat and Anr. v. Suryakant Chunilala Shah, reported in 1999(1) S.C.C. 529, in Nawal Singh v. State of U.P. and Anr., and in Chandra Singh and Ors. v. State of Rajasthan and Anr., . Attention has also been drawn to the rule 205 of the Mumbai Municipal Corporation Service Rules applicable to the employees of the corporation.
3. Undisputedly, in terms of Sub-rule (1) of the Rule 205 of the said Service Rules applicable to the parties, every employee of the Corporation retires from service on attaining the age of 58 years. The second proviso to the said Sub-rule (1) of Rule 205 of the said Service Rules empowers the Corporation to compulsorily retire an employee of the Corporation on attaining the age of 55 years, when such an action is warranted in public interest, subject to the notice in that regard to be served three months in advance or payment of three months’ salary along with allowances in lieu of such period of three months. The said proviso reads thus :-
“Provided further that the appropriate authority may, if it is of the opinion that it is in the public interest to do so, require a corporation employee to retire from service after he has attained the age of 55 years by giving him notice of not less than three months in writing or on payment of three months’ pay and allowances which he would have drawn during the notice period except those allowances which are granted for defraying the expenses for performance of special duties in lieu of such a notice. Such a Corporation employee will be deemed to have retired from service on attaining the age of superannuation, for Provident Fund, Pension, etc., benefits.”
4. It is not in dispute that the order dated 29th January, 2004 was passed in exercise of the power under Rule 205 of the said service rules.
5. There is no dispute that there was an inquiry against the petitioner and the recommendations of the inquiry officer to withhold the increment of the petitioner for one year with permanent effect on his future increment and for recovery of an amount of Rs. 20,000/- from his salary in suitable instalment towards loss sustained by the Corporation by taking appropriate action under the Pension Rules consequent to the retirement of the petitioner, were accepted by the disciplinary authority. It is also undisputed fact that the petitioner has filed an appeal against the said order and the same is pending. Meanwhile, consequent to the initial order dated 21st February, 2001 passed by this Court in Writ Petition No. 2501 of 1999 filed by the petitioner in relation to the said inquiry, the petitioner was reinstated. However, by the order dated 29th August, 2001 passed in Notice of Motion No. 1077 of 2001 in Appeal No. 629 of 2001 arising out of the order passed in Writ Petition No. 2501 of 1999, it was observed that the respondent/Corporation was at liberty to continue with the inquiry in accordance with the relevant service rules, if it so desired. Accordingly, the inquiry had proceeded in accordance with the provisions of law and the said order which is the subject-matter of appeal came to be passed in the inquiry proceedings.
6. It is to be seen that the charges in the inquiry proceedings against the petitioner related to the loss of revenue stated to have been suffered to the extent of Rs. 93,710/- per annum on account of certain acts on the part of the petitioner and further on account of failure on the part of the petitioner to make certain entries in the register maintained by the corporation. After considering the materials in support of the charges and the report of the inquiry officer, undisputedly, the Inquiry Officer has imposed punishment in relation to the denial of an increment to the petitioner. The records nowhere disclose that the corporation having imposed the punishment disproportionate to the charges stated to have been established against the petitioner in the said inquiry. Needless to say that these observations are being made only for the purpose of considering the contention of the petitioner regarding the allegation of the petitioner that the action on the part of the corporation in passing the order of compulsory retirement being mala fide. Merely because the petitioner has challenged the said order of punishment imposed in the said inquiry by filing appeal against the same, it can hardly be said that the pendency of the appeal by itself could be considered as sufficient to draw a conclusion about the action regarding compulsory retirement by the Corporation being vindictive in nature or discloses mala fide on the part of the Corporation. Exercise of statutory right of appeal against the punishment imposed by the employer cannot by itself be sufficient to draw the conclusion regarding any subsequent lawful Act on the part of the employer to be vindictive or mala fide, unless some material in support of such allegation regarding vindictment or mala fide is placed before the Court. In the case in hand, the petitioner has not been able to point out any such material in support of his allegation regarding the Act of his compulsory retirement being mala fide. In this regard, one is reminded of the judgment of the Apex Court in Union of India and Ors. v. Dulal Dutt, wherein, it was held that an order of compulsory retirement is not an order of punishment and merely because the public authority exercising its statutory power in that regard, it cannot be called either mala fide or arbitrary in law.
7. As regards non-supply of the copies of the documents or failure on the part of the Corporation to give inspection of the documents during the pendency of the inquiry and that the same discloses mala fide on the part of the Corporation in the action of compulsorily retiring the petitioner, it is seen from the records that the Corporation did furnish the copies of various documents to the petitioner and inspection thereof. The Corporation had also made it clear that certain copies of documents could not be furnished to the petitioner as those were not available in the records of the Corporation. Once the Corporation had made it clear that certain copies of the documents, which were asked for, were not available with it, merely because the inspection of such non-available documents was denied, the same cannot be construed as mala fide action on the part of the corporation. It is pertinent to note that it is not the case of the petitioner that the documents, inspection of which was denied by the corporation, were infact relied upon by the authority in the course of inquiry or that the disciplinary authority had relied upon the same to justify the punishment imposed upon the petitioner.
8. As regards the contention about the denial of promotional opportunity, apart from the bare allegation in that regard, the petitioner has not been able to substantiate the same with reference to the materials on record. It was strenuously argued on behalf of the petitioner that the authority had failed to take into consideration the fact that the petitioner was granted promotion and which discloses that he was not a mere dead-wood so as to be discarded after attaining the age of 55 years. The contention in that regard is contrary to the materials on record and even against the ground sought to be raised by the petitioner in the petition itself. The ground in relation to the allegation of mala fide and in relation to the promotion reads thus:
“That the respondents were aware of the fact that the petitioner was due for promotion, during the period 11-12-1996 and also during 24-2-2003 his name was also included in the list of seniority, but, however, was denied the promotional opportunity, itself is bad in law and against the principles of natural justice and the action as initiated by the respondents, is mala fide and tainted with bias.”
The above ground apparently discloses that there is absolutely no substance in the contention of the learned Advocate for the petitioner that the authorities have failed to take into consideration the alleged fact of promotion of the petitioner. It is apparent from the above statement of fact that the petitioner was not granted promotion and, therefore, it cannot be said that the petitioner during the period immediately preceding the date of retirement had shown better performance which could have weighed in his favour for continuation in the service and against his compulsory retirement.
9. As regard the Sub-rule (2) of Rule 205 of the said Service Rules, which prohibits retirement during the pendency of the inquiry, it relates to the period during the pendency of the inquiry while person is in service. It does not relate to the period after conclusion of the disciplinary inquiry. The expression used therein clearly states that “final order is passed thereon by the authority competent to award punishment to the corporation employee,” which apparently shows that the restrictions provided under Sub-rule (2) of Rule 205 of the said Service Rules, would remain in force till the order by the Disciplinary Authority is passed. In the case in hand, it is not in dispute that the Disciplinary Authority had already passed the order much prior to the issuance of the order for compulsory retirement.
10. The decision in the matter of Umedbhai M. Patel (supra) was sought to be relied upon in relation to the guidelines laid down by the Apex Court for the purpose of compulsory retirement in exercise of Article 311 of the Constitution of India, and more particularly the attention was drawn to the clause (vii), which reads thus :
“If the officer is given a promotion despite adverse entries made in the Confidential record, that is a fact in favour of the officer.”
As already seen above, no promotion was granted to the petitioner, and therefore, the decision in Umedhabi M. Patel’s case (supra), and particularly in relation to the Clause (vii), it cannot be said that there is any violation on the part of the Corporation in relation to the guidelines laid down by the Apex Court.
11. In Baikuntha Nath Das’s case (supra), it was held that the order of compulsory retirement has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily and the order to be passed on the subjective satisfaction of the Government. It was also held therein that, the record to be so considered would naturally include the entries in the confidential records/ character rolls, both favourable and adverse. One fails to understand, how the said decision is helpful to the petitioner in the case in hand. The petitioner, apart from referring to the seniority list, has not been able to point out any material from the confidential records or character rolls favourable to the petitioner which could be said to have been ignored while considering the issue regarding the compulsory retirement of the petitioner and while passing the order in that regard.
12. The decision in Suryakant Chunilal Shah’s case (supra) was in the peculiar facts and circumstances of that case wherein the review committee had not recommended compulsory retirement and the secretary and the Chief Secretary while rejecting those recommendations were inclined to impose precondition upon the officer, who was compulsorily retired, that he was required to accept compulsory retirement without any protest whereupon, the criminal cases against him would have been withdrawn and that itself was sufficient to disclose mala fide in the action of compulsorily retiring the officer. That is not the case in hand, and, therefore, various observations made in the said decision can be of no help of the petitioner to challenge the impugned order,
13. In Chandra Singh’s case (supra), it was ruled that, in terms of Rule 53 of the Pension Rules, 1996, an order for compulsory retirement can be passed only in the event the same is in public interest and/or three months notice or three months pay in lieu thereof had been given and compliance of prerequisites of such a Rule is mandatory and not directory. Undisputedly, in the case in hand, the order of compulsory retirement was passed on 29th January, 2004 which was to take effect from 30th April, 2004 (A.O.H.). Admittedly, till 30th April, 2004 the petitioner was continued in service. Considering the Rule 205 of the said Service Rules, which requires a notice of retirement to be given atleast three months in advance, it cannot be said that there is any violation of compliance of prerequisites under Rule 205 of the said service Rules for the purpose of retirement of an employee of the Corporation.
14. In Nawal Singh’s case (supra), the Apex Court had observed that formation of opinion regarding compulsory retirement on the basis of doubtful integrity should be entertained on the basis of opinion of higher officer, who had the opportunity to watch the performance of the judicial officer concerned and to form an opinion with regard to overall reputation enjoyed by him. It is not the case in hand that the opinion regarding satisfaction of public interest in ordering compulsory retirement of the petitioner has been formed by the officer who had no opportunity to evaluate the performance of the petitioner. Being so, the said decision is also not attracted to the case in hand.
15. For the reasons stated above, there is no case for interference in the impugned order and hence, the petition fails and is accordingly dismissed. The rule is discharged with no order as to costs.
16. At this stage, the learned Advocate for the petitioner prays for stay of the order passed today for a period of four weeks. The question of grant of stay does not arise since the grant of stay of the order passed today will ipso facto revive the order of the corporation dated 29th January, 2004 which has already taken effect from 30th April, 2004. Hence, the request for stay of the order passed today is rejected.
17. Authenticated copy be provided to the parties.