Order Of Premature Retirement Indicating Misconduct/ Lack Of Integrity Is Stigmatic: Gujarat High Court Grants Relief To Armed Police ASIs

The Gujarat High Court has held that an order of 'premature retirement' become stigmatic if such order contains statements indicating misconduct or lack of integrity."Where orders have been passed which indicate blemish, disgrace, disrespute etc., and in that context if an order of termination or of compulsory retirement is seen, the same would amount to stigma by virtue of a statement made in the order."Further, it said that once, the departmental inquiry has been conducted and punishment is inflicted, the organisation cannot inflict a second penalty such as the order of premature retirement. Such action amounts to double jeopardy. Justice Biren Vaishnav explained: "In the facts of the present case it is found that a departmental inquiry was undertaken, the petitioners were punished by imposing a penalty of stoppage of one increment with future effect, having done that for the same ground as is reflected in the order impugned herein, the petitioners have been treated as dead wood and retired prematurely. This not only amounts to a stigmatic order of premature retirement, but also a double jeopardy inasmuch as, once having inflicted a penalty for the same cause the petitioners though prematurely retired which cannot be termed as a penalty, based on the aspersion cast on the petitioners, the order is stigmatic too." The Petitioners herein were working as Armed Assistant Sub Inspectors of Police in the State Reserve Police Force and were challenging the orders of premature retirement passed under Rule 10(4) of the Gujarat Civil Service (Pension) Rules, 2002. It was alleged that the policemen had produced forged certificates in support of passing their CCC examinations. The chargesheet had been filed and the case was pending before the competent courts. The Petitioners contested that the impugned orders amounted to double jeopardy since the Petitioners had been penalised vide orders of stoppage of increment with future effect. The principle of 'premature retirement' etc. cannot serve as a camouflage for dismissal on the ground of misconduct. It was submitted that the order was stigmatic in nature. Per contra, the AGP submitted that the government had the power to retire a government servant from service prematurely on his attaining the age of 50-55 basis public interest. Upon perusing the orders, the High Court found that the recital stated that a departmental inquiry had been carried out for the alleged offences. Consequently, Rule 10(4) was invoked and the Petitioners were directed to be retired. Referring to State Bank of India v/s Palak Modi, the High Court explained that the though the decision was in the context of a termination of a probationer, the legal point was applicable. The Apex Court had held that if the competent authority holds an inquiry for judging the suitability of the candidate who is on probation and later, his services are terminated basis misconduct, then such a termination would violate the principles of natural justice. The High Court also reiterated the Supreme Court's test to determine if the termination is punitive in nature. The courts must inquire if a) there was a full scale inquiry, b) the orders involved the allegations of moral turpitude or misconduct which c) resulted in the finding of guilt. If such factors were present, the termination was punitive. Justice Vaishnav further emphasised that to test whether the order is stigmatic, the concept of 'motive' and 'foundation' must be explored. Keeping in view these principles and precedents, the High Court found that the orders were stigmatic in nature and violative of double jeopardy. Hence, they were liable to be quashed. The Respondents were directed to extend benefits of pension and other terminal benefits to Petitioners as if the Petitioners had retired on superannuation within 12 weeks. Case No.: C/SCA/20436/2019 Case Title: MOHBATSINH BALUSINH ZALA v/s STATE OF GUJARATCitation: 2022 LiveLaw (Guj) 364 Click Here To Read/Download Judgment

Order Of Premature Retirement Indicating Misconduct/ Lack Of Integrity Is Stigmatic: Gujarat High Court Grants Relief To Armed Police ASIs

PRIYANKA PREET

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