DAVE, J. - (1.) WHEN the State or Corporation of the Boards created by the Statute who have also the legal departments to advise and panel of lawyers to advise and act, on their behalf, prefer appeals in cases which are squarely covered by a catena of cases decided by the High Court and the Apex Court of country namely, Hon'ble the Supreme Court of India it shocks the conscience of the court as the money spent on litigations, which is Tax payees money can better be utilized in development works. It is all the more disgusting when it is manifest from the record of the case that several counsel have been changed in the case at appellate stage for reasons best known as if, that is either going to improve the case or would change the settled law. The present case is not an exception to this.
(2.) APPELLANT filed this Special Appeal against the judgment of the learned Single Judge, dated 2nd August 1984, whereby the learned Single Judge allowed the writ petition filed by the petitioner-respondent and set aside the order of his compulsory retirement, dated 24. 10. 1975. The respondent joined the service in terstwhile Electrical and Mechanical Department of the Government of Rajasthan (now Rajasthan State Electricity Board) as a Meter-Reader on 26. 08. 1949. He was thereafter promoted as Lower Division Clerk on 24. 08. 1955 and further promoted as Upper Division Clerk on 28. 10. 1956. On 28. 03. 1959 he was promoted as Head Clerk and in the same year he was appointed as an Accountant. After another five years he was promoted as Asstt. Accounts Officer on 27. 04. 1964 and finally as Accounts Officer on 23. 05. 1970. Thus he had been given promotions due to him as and when he earned the same. Though the Electricity Board was formed in the year 1957 but the services of the respondent were absorbed in the Rajasthan State Electricity Board by Notification dated 21. 01. 1975 as Accounts Officer and since after that he became the regular employee of the Board. An order No. RSEB/pas/d. 178, dated 24. 10. 1975 retiring the respondent compulsorily from service on the expiry of three calendar months from the date of service of the notice, was issued which was received by the respondent on 25. 10. 1975. The petitioner was actually retired w. e. f. forenoon of 24. 01. 1976. The respondent challenged this order of compulsory retirement on several grounds including that he has not been retired in the public interest. His case was that he had excellent record of service and he has not been communicated any adverse A. C. R. The respondent's grievance is that he was served with a charge-sheet on 29. 05. 1975 and was also placed under suspension vide order dated 22. 04. 1975 in contemplation of the enquiry and the present order of compulsory retirement has been passed as a measure of punishment without completing the enquiry. His submission is that during the pendency of the enquiry when he was under suspension he could not have been compulsorily retired by circumventing the regular process of law. His further case is that he has not completed 25 years of service as was contemplated by law and, therefore, he should not also have been compulsorily retired. The Board in its reply submitted that the respondent has not been compulsorily retired because of the pendency of the enquiry against him. The submission is that the Board constituted a Screening Committee to scrutinise the record of the officials and thereafter a High Power Committee was constituted to further consider the cases about compulsory retirement and after that the whole process was lawfully completed and the respondent was placed under suspension. It is submitted that the Board considered all the material pertaining to the respondent for considering his case for compulsory retirement and it has reached the conclusion after careful perusal of the entire record containing facts, circumstances, merits, performance ability, capability, efficiency etc. of the respondent. Further submission is that it was unanimous decision of the Screening Committee as well as of the Board which was not actuated without malice therefore, the order of compulsory retirement of the respondent does not call for any interference. It may be mentioned here that when this writ petition was pending an identical writ petition in the case of one Chand Ratan was filed before this court where similar points were agitated. The said writ petition after marathon arguments was decided by the Bench of Hon'ble the Chief Justice, Mr. P. K. Benerji on August 1, 1984. When this case came up on 2. 08. 1984, it was brought to his notice that this case is squarely covered by the case of Chand Ratan. However, Mr. H. P. Gupta representing the Electricity Board raised certain arguments and he emphasized that the suspension and the charge-sheet were not the foundation of the passing of the order of compulsory retirement but that was only the back-ground of the order. It was further argued that the petitioner was under suspension and was charge-sheeted but before his reply could be obtained he was compulsorily retired. The court held that under the facts and circumstances of the case the entire order of compulsory retirement was by way of punishment to punish the respondent for a charge which was pending against him at the time the order was made and because of suspension order made against the petitioner and the enquiry. Aggrieved by this order the present appeal was filed.
(3.) MR. R. M. Lodha appearing on behalf of the Electricity Board before us vehemently argued that the order passed by Hon'ble Chief Justice, MR. P. K. Benerjee is pervrse in as much as he has not gone into the pleadings of the parties in the writ petition and further that he failed to appreciate that two High Power Committees considered the case of the respondent before the order of compulsory retirement was passed and in such circumstances no interference should have been done. It is submitted that against the respondent there were criminal cases pending and he was also facing charge-sheet which are very material circumstances for consideration of passing the order of compulsory retirement. His submission is that the order of compulsory retirement cannot be based as a punishment without holding the enquiry but when it is passed in public interest under the provisions of the regulations, the considerations arc different. The Board in exercise of its powers given under Regulation 18 of the Rajasthan State Electricity Board Employees Service Regulations, 1964, considered his previous service record and came to the finding that his continuation in service was not in nature of public interest and, therefore, he should be retired compulsorily. Learned counsel further submitted that the suspension order and the charge-sheet were not the basis of passing of the order of compulsory retirement and further that mere pendency of departmental enquiry would not debar the department from passing an order of retirement on an overall assessment of the retiring official's record. It is submitted that the order dated 24. 10. 1975 neither contained any stigma nor was by way of punishment. Neither the proceedings of the Screening Committee nor Committee's meeting of official members contained any reference which is subject matter of the departmental enquiry or the criminal cases but the order was passed on examination of personal files and confidential reports of the concerned officials. Learned counsel, relied on The State of Bombay vs. Saubhag Chand M. Doshi (1), Madan Gopal vs. The State of Punjab & others (2), Tara Singh etc. vs. State of Rajasthan and others (3), The State of U. P. Vs. Ram Chandra Trivedi (4), Brij Mohan Singh Chopra vs. State of Punjab (5), Bihar Rajya Vidhyut Parishad Field Kamgar Union vs. State of Bihar & others (6) and Shyamlal Vs. State of U. P. (7 ). It is contended on behalf of the respondent that the order in Chand Ratan's case stands confirmed by the Division Bench of this court and, therefore, nothing remains to be decided in this case as the judgment was based on Chand Ratan's case and there is no infirmity in the same. It is further submitted that there is not a single entry in the service record of the petitioner which could be adverse to him or which might have been communicated to him much less five years preceding the order of compulsory retirement. His submission is that he has wrongly been charge-sheeted and a false case was made against him in police which has resulted in the final report. But when the department knew that nothing could come out in the departmental enquiry they camouflaged and circumventing due process of law passed the order of compulsory retirement. It is submitted that this order of compulsory retirement is in nature of stigma as it is mentioned therein that the respondent was under suspension at the time when the order has been passed. Ex facie if any body would read the order he would make out that the order of compulsory retirement is by way of punishment. Learned counsel submits that there is catena of cases to support his contention that during the pendency of the enquiry, there being nothing adverse in the service record of the respondent, he cannot be compulsorily retired. He has relied on V. P. Gidroniya vs. State of Madhya Pradesh (8), Jethmal Vs. State of Raj. (9), Union of India vs. Abdul Manan Khan (10), decided by this Hon'ble Court and R. S. E. B. vs. Chand Ratan (11), decided on 12. 9. 1990. We have given our thoughtful consideration to the rival contentions and have perused the record. ;