2011 PLRonline 0001
Punjab and Haryana High Court
Before: Justice M.M.Kumar and Justice Gurdev Singh, JJ.
STATE OF HARYANA and others - Appellants,
versus
ASI BALWAN SINGH - Respondent.
L.P.A. No. 1124 of 2011(O&M)
07.09.2011
Compulsory retirement - Is not a punishment and it does not imply any stigma - Such an order is required to be passed by the State on forming an opinion that it was not in public interest to retain a Government servant in service beyond the age of 50/55 years and it was necessary to retire him compulsorily - The order is based on the subjective satisfaction of the authorities of the State. It has been clarified that the principles of natural justice have no place in the context of order of compulsory retirement - The order can be challenged if it is mala fide and is based on no evidence or has been passed arbitrarily in the sense that no reasonable person would take the view which have been taken by the authority - The entire record of service can be considered by the authorities. [Para 6]
Held,
The arguments based on the instructions dated 14.3.2006(P-2) would not require any detailed consideration because the instructions make it clear that it is only minor punishment of 'censure' and 'warning' which may not constitute the basis for order of compulsory retirement of Government employee. The other punishment which might be minor in nature and might have emanated after holding of the regular departmental enquiry would not be excluded from the scope of relevant material for deciding the retention of an employee at the age of 50/55 years. Such punishment like infliction of minor penalty of stoppage of increment without cumulative effect would be relevant consideration keeping in view the back ground in which the departmental enquiry was instituted and lenient view taken by the authorities. Therefore, we do not find any merit in the contention that the instructions dated 14.3.2006 (P-2) would apply only if the ACR of entry of doubtful integrity has been recorded against an employee and that in case of minor punishment, the order of premature retirement cannot be passed. There is no substance in that argument and the same is hereby rejected.
Mr. Aman Chaudhary, Addl. Advocate General, Haryana for the appellants. Mr. S.N.Yadav, Advocate, for the respondent.
Judgment
M.M.Kumar, J.
1.The instant appeal under Clause X of the Letters Patent is directed against judgment dated 28.1.2011 rendered by learned Single Judge holding that the writ petitioner-respondent could not have been prematurely retired. The learned Single Judge after noticing the punishments awarded to the writ petitioner-respondent has reached the conclusion that unless his integrity was doubted, the order of premature retirement could not have been passed. For the aforesaid conclusion, the learned Single Judge has placed reliance on instructions dated 14.3.2006 (P-2) to say that once the rules and instructions prescribed that the entire conduct of the petitioner is to be seen and evaluated then the order of compulsory retirement would be regarded as arbitrary if there is nothing against him. It has further been concluded that if the appellant-State was not satisfied with the conduct of the writ petitioner-respondent, in so far as his approach to investigate crime is concerned, then he could have been adjusted elsewhere by giving him lesser assignment. The learned Single Judge opined that the order of compulsory retirement could not have been passed against him.
2.Brief facts of the case are that the writ petitioner-respondent has come on the Rolls of the Police Department on 19.4.1976. His date of birth is 15.4.1955. After under going Lower School Course he was promoted as Head Constable on 8.11.1994 and was further promoted as Assistant Sub Inspector on 2.2.2004. It remained undisputed that he suffered many punishments during last 10 years preceding the date of notice of premature retirement which is evident from para 3 of the written statement which reads as under:-
“(a) In the year 2001 when the petitioner was posted in police post Shivaji Colony, Rohtak he retained case file of FIR No. 162/2001 with him even after his transfer from police Post Shivaji colony and hence punishment of censure was given to him.
For showing negligence in discharge of official duties he did not take interest in disposing of tracing 15 criminal cases of P.S.Sadar Rohtak, a regular departmental enquiry was ordered and punishment of stoppage of two annual increment with permanent effect was awarded vide order dated 31.10.2006. However, on appeal to the Inspector General of Police, Rohtak Range Rohtak the punishment was scaled down to stoppage of one annual increment with temporary effect.
(c) On 18.3.2008 the petitioner was placed under suspension on account of dereliction in duty and disobedience/orders of DSP Detective. Regular departmental enquiry was ordered against the petitioner and he was awarded punishment of stoppage of two annual increments with temporary effect and the suspension period i.e. 18.3.2008 to 2.5.2008 was ordered to be treated as period not spent on duty for all intent and purposes.
(d)The petitioner committed gross negligence in conducing investigation of case FIR No. 20/2009 P.S. Shivaji Colony Rohtak show cause notice was given to him but he did not dare to reply the same and hence punishment of censure was given to him vide OB No. 644/2009.
(e)The petitioner conducted improper investigation of case FIR No. 189 of 21.8.2009 under Sections 148/149/323/324/452/506 IPC Police Station Shivaji Colony. A regular departmental enquiry is pending against the petitioner.”
3.On the basis of the aforesaid record, his case regarding retention in service beyond the age of 55 years was sent to Inspector General of Police, Rohtak Range on 11.11.2009. After taking into account the period of 2001 to 2009, the writ petitioner-respondent has been prematurely retired after following the due course. He was given three months notice on 24.5.2010 and he stood retired on the expiry of three months.
Mr. Aman Chaudhary, learned Additional Advocate General, Haryana has argued that entries in service record of the writ petitioner- respondent would show that he was subjected to regular departmental enquiry before inflicting major punishment twice, once in the year 2006, which resulted in stoppage of one annual grade increment without permanent effect vide order dated 31.10.2006 and another in the year 2008 in which the writ petitioner- respondent was awarded punishment of stoppage of two annual grade increments without cumulative effect. However, the period of suspension from 18.3.2008 to 2.5.2008 was ordered to be treated as period not spent on duty for all intents and purposes. Mr. Chaudhary has further submitted that even if the punishment of censure awarded in the year 2001, listed at Item No. 'A', is ignored on account of promotion, the subsequent punishment would be relevant for the purposes of assessment of the writ petitioner-respondent for retention in service beyond the age of 55 years. In support of his submission learned State counsel has placed reliance on the various propositions laid down by Hon'ble the Supreme Court in the case of Baikuntha Nath Das and another v. Chief District Medical Officer, Baripada and another, (1992) 2 SCC 299 and argued that the entry of doubtful integrity may be one of the consideration for retiring an officer compulsorily. It is not the only entry which would earn him the premature retirement. His over all record of service with other entries which may reflect on his efficiency, 'lethargy' and indicate towards the fact that he has become 'dead wood' would be equally relevant. In that regard he has drawn our attention to propositions (i) and (ii) given in para 34 of the judgment rendered in Baikuntha Nath Das's case (supra). Mr. Chaudhary has maintained that the order of compulsory retirement is not a punishment and it is passed in the larger public interest to chop of the dead wood and to bring efficiency in the Government service.
4.As against the aforesaid submissions, Mr. S.N.Yadav, learned counsel for the writ petitioner-respondent has submitted that the Director General has issued instructions on 14.3.2006(P-2) and according to those instructions only those Government employees should be allowed to continue in service beyond the age of 55 years, who have earned 70% or above good reports and whose integrity is not doubted during the last 10 years. According to those instructions the service record of such officials with regard to punishment awarded should be properly scrutinized and if the punishment has been awarded on the charge which reflected upon the integrity of the employee then he should not be permitted to serve beyond the age of 55 years. According to the learned counsel the punishments like 'warning' and 'censure' are liable to be ignored. Learned counsel has supported the order of the learned Single Judge and argued that the writ petitioner-respondent could have been given any other lesser duty.
5.Having heard learned counsel for the parties and keeping in view the well settled principles of law, we are of the considered view that this is not a case where the appellant - State has committed an error or there is lack of application of mind to the service record of the writ petitioner-respondent. The consideration has to be on the basis of well known principles which have been summed up by Hon'ble the Supreme Court in para 34 of the judgment in Baikuntha Nath Das's case (supra), which reads thus:-
“(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii)The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.
(iii)Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or ( c) that is arbitrary – in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order.
(iv)The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter – of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v)An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.”
6.A perusal of the above para would leave no manner of doubt that the order of compulsory retirement is not a punishment and it does not imply any stigma. Such an order is required to be passed by the appellant State on forming an opinion that it was not in public interest to retain a Government servant in service beyond the age of 50/55 years and it was necessary to retire him compulsorily. The order is based on the subjective satisfaction of the authorities of the State. It has been clarified that the principles of natural justice have no place in the context of order of compulsory retirement. The order can be challenged if it is mala fide and is based on no evidence or has been passed arbitrarily in the sense that no reasonable person would take the view which have been taken by the authority. The principles make it clear that the entire record of service can be considered by the authorities.
7.When the aforesaid principles are applied to the facts of the present case, it becomes evident that writ petitioner-respondent was working on the post of Assistant Sub Inspector when he earned the punishment of stoppage of one increment without cumulative effect vide order dated 31.10.2006. Likewise in 2008, the writ petitioner-respondent suffered the punishment of stoppage of two increments without cumulative effect vide order dated 18.10.2008 and the period of his suspension from 18.3.2008 to 2.5.2008 was ordered to be treated as period not spent on duty for all intents and purposes. He also earned 'censure' on account of gross negligence in conducing the investigation of case FIR No. 20 of 2009 Police Station Shivaji Colony, Rohtak. A show cause notice was issued to him but he did not reply to the same. Hence, a punishment of censure was awarded to him. Thereafter, a regular departmental enquiry was instituted with regard to improper investigation of case FIR No. 189 of 21.8.2009 under Sections 148/149/323/324/452/506 IPC Police Station Shivaji Colony. A departmental enquiry was pending against him at the time of formation of opinion. However, it has been conceded by learned counsel for the parties that he was exonerated in the aforesaid departmental enquiry. The aforesaid material in our opinion is sufficient for the competent authority to record satisfaction that the writ petitioner-respondent did not deserve to be retained in service and it was in public interest to retire him compulsorily. It is completely in accord with the principles laid down in Baikuntha Nath Das's case (Supra).
8.The arguments based on the instructions dated 14.3.2006(P-2) would not require any detailed consideration because the instructions make it clear that it is only minor punishment of 'censure' and 'warning' which may not constitute the basis for order of compulsory retirement of Government employee. The other punishment which might be minor in nature and might have emanated after holding of the regular departmental enquiry would not be excluded from the scope of relevant material for deciding the retention of an employee at the age of 50/55 years. Such punishment like infliction of minor penalty of stoppage of increment without cumulative effect would be relevant consideration keeping in view the back ground in which the departmental enquiry was instituted and lenient view taken by the authorities. Therefore, we do not find any merit in the contention that the instructions dated 14.3.2006 (P-2) would apply only if the ACR of entry of doubtful integrity has been recorded against an employee and that in case of minor punishment, the order of premature retirement cannot be passed. There is no substance in that argument and the same is hereby rejected.
9.In view of the above, the opinion expressed by he learned Single Judge is unsustainable and the same is hereby set aside. The writ petition filed by the writ petitioner-respondent is dismissed. The instant appeal is allowed and the order of premature compulsory retirement passed in respect of the writ petitioner-respondent is upheld.