Punjab-Haryana High Court
Asi Rameshwar Dass vs The State Of Haryana And Others on 6 July, 2011
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITION NO.3902 OF 2010 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: JULY 06 ,2011
ASI Rameshwar Dass
.....Petitioner
VERSUS
The State of Haryana and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. R. N. Lohan, Advocate,
for the petitioner.
Mr. Sunil Nehra, Sr.DAG, Haryana,
for the State.
****
RANJIT SINGH, J.
The petitioner has mainly challenged the order of his compulsory retirement passed on 23.12.2009 (Annexure P-11). Since this order of compulsory retirement is based on the adverse remarks endorsed in the ACR of the petitioner for the period from 1.4.2006 to 18.12.2006, the petitioner has also challenged the said ACR besides challenging the order, rejecting his representation filed against the adverse remarks endorsed in the said ACR.
Having been recruited as Constable on 1.10.1989, the CIVIL WRIT PETITION NO.3902 OF 2010 :{ 2 }:
petitioner was promoted on the rank of Assistant Sub Inspector and claims to have maintained good/very good record throughout except for the adverse remarks endorsed in his ACR on 28.8.2007 for the period from 1.4.2006 to 18.12.2006. Giving background of the reasons for which the adverse remarks were endorsed in his ACR, the petitioner has stated that a case under Section 342, 384 IPC was registered against the petitioner on 14.8.2006. A charge sheet was also served upon the petitioner for similar allegations. As per the petitioner, this incident led to endorsement of the above noted adverse remarks in his ACR. The petitioner faced trial and was acquitted of the criminal offences alleged against him on 7.5.2007. The petitioner was also exonerated by the Enquiry Officer on 24.12.2007, which was accepted by the Superintendent of Police, Jind. The petitioner submitted a representation on 5.11.2007 against his adverse remarks. The representation of the petitioner was rejected on 2.6.2008. The petitioner filed yet another representation against the order dated 2.6.2008 before Director General of Police, Haryana. This representation was rejected on 11.2.2009 by the D.G.P. It is on the basis of this entry that Inspector General of Police, Hisar Range (respondent No.3), ordered the compulsory retirement of the petitioner on 23.12.2009 on attaining the age of 55 years. The petitioner has accordingly filed the present writ petition to impugn the adverse remarks endorsed in his Annual Confidential Report as well as consequential order of compulsory retirement passed on the basis of said adverse remarks.
In the reply filed by the respondents, the impugned orders CIVIL WRIT PETITION NO.3902 OF 2010 :{ 3 }:
have been justified. It is stated that respondent No.3 considered the case of the petitioner for grant of extension beyond 55 years of age and has found the petitioner unfit to serve beyond the age of 55 years. It is stated that honesty of the petitioner was doubted in the ACR for the period 1.4.2006 to 18.12.2006 against which he had filed a representation, which was considered and rejected upto the level of D.G.P. It is then pointed out that recording of the adverse remarks is purely an administrative action and is an outcome of the subjective satisfaction of the reporting officer, which is based on the general reputation of the Officer reported on. The A.C.R is a reflection of the performance of a Government servant, which is recorded for the purpose of improving the working of the officer and to bring to his notice the deficiencies, which he is required to improve/remove. It is specifically denied that the endorsement of these remarks in the Annual Confidential Report had any relationship with the disciplinary proceedings or criminal proceedings held/initiated against the petitioner. It is accordingly prayed that the writ petition be dismissed.
The sole contention raised by counsel for the petitioner is that the adverse remark is directly related to initiation of departmental and criminal proceedings and once the petitioner is exonerated of criminal as well as departmental charge sheet, the remarks endorsed on the basis of these proceedings would have to go.
The State counsel, however, would contest this position and would submit that the remarks endorsed in the Annual Confidential Report have no relationship with the criminal or the departmental proceedings and are independent assessment of the CIVIL WRIT PETITION NO.3902 OF 2010 :{ 4 }:
work and conduct of the petitioner. The counsel accordingly prays for dismissing the writ petition.
Let us first examine the impugned remarks in the Annual Confidential Report to see if these remarks were based on any criminal charge or a departmental proceeding initiated against the petitioner or are independent thereof. The remarks, which were conveyed to the petitioner on 28.8.2007 are as under:-
"Sr.No. Grade of Report Remarks
1 Honesty Doubtful
2 Moral courage and promptness in Poor
tackling the criminals under him.
3 Rapport with the people and good Poor
behaviour with them.
4 Rapport with the officers Poor
working under him.
5 General control power and Poor
capability
6 Power to lead Poor
7 Capability regarding Poor
investigations and solution.
Modern investigation methods Poor
and interest in the modern police
8 methods.
9 Experience regarding crime law Poor
and investigations.
10 Reliability Poor
Defect if any and if the attention FIR No.441 dated 14.8.2006 under Section of the concerned officer has been 342, 384 IPC PS Sadar Fatehabad is drawn vide any letter. registered. In the case of buffalo, this ASI has not returned the buffalo to one Nafe 11 Singh and this person is very harassed."
Can these remarks endorsed in different columns of the Annual Confidential Report of the petitioner be related to the criminal case registered against him or the departmental proceedings held against him?
The honesty of the petitioner has been termed as CIVIL WRIT PETITION NO.3902 OF 2010 :{ 5 }:
`doubtful'. This has no relationship with the criminal case or departmental proceedings. The petitioner has been assessed as `poor' in different qualities like moral courage and promptness in tackling criminals, rapport with people and good behaviour with them, rapport with officers working under him, general control, power, power to lead, capability regarding investigation, modern investigation methods, experience regarding crime law and investigation and reliability. Thus, the petitioner has been assessed as poor in almost all the qualities mentioned in the annual confidential report. It is only in one column of the report where reference is made to the FIR registered against him and that is regarding "Defect, if any, and if the intention of the concerned officer has been drawn vide any letter". Against this column, reference is made to the FIR registered against him. The allegations against the petitioner are that he did not return the buffalo in a case to one Nafe Singh and he was harassed. This is simply mentioned as a defect, for which his attention was invited and obviously can not be seen to have any relation with different shades of qualities for which the petitioner was assessed in various columns. This incident can not have any relationship with the moral courage and promptness or for that matter rapport with public people or subordinates or the capacity of the petitioner to lead or his capability to investigate and find solution or his use of modern investigation method etc. The petitioner has also been assessed as `poor' in reliability, which is not seen coloured in any manner from the allegations in the FIR or departmental proceedings. It would be, thus, safe to observe and CIVIL WRIT PETITION NO.3902 OF 2010 :{ 6 }:
hold that the assessment has got no relationship with the registration of a criminal case against the petitioner or the departmental proceedings which were held against him. Once the petitioner has been found to be having a doubtful honesty, this entry coupled with his overall poor performance was enough to hold the petitioner unfit for further retention in service on completion of 55 years of age.
Similar proposition of law was considered by this Court while deciding Civil Writ Petition No.13109 of 2009, titled (Constable Richhpal Singh Vs. State of Haryana and another) decided on
19.8.2010 and such plea raised was rejected by noticing that the entire Annual Confidential Report is not relatable to the criminal case. At the most, the acquittal in a criminal case and exoneration in the departmental proceedings may have effect on an endorsement made in column No.11 and the same even if is expunged would not have any effect on the order of compulsory retirement passed on the basis of this Annual Confidential Report.
Here it may need to be appreciated that compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.. Nature of the order of compulsory retirement is not punitive. The compulsory retirement would depend upon the subjective satisfaction of the Government and this opinion is required to be formed on the basis of the entire service record. Indeed, while passing the impugned order of compulsory retirement, the respondents had taken into consideration the entire record of the petitioner and then apparently had decided that the petitioner would not be a fit person to be retained beyond 55 years of age. This was CIVIL WRIT PETITION NO.3902 OF 2010 :{ 7 }:
not by way of punishment and no stigma is attached to the same. Reference here may be made to Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, AIR 1992 Supreme Court 1020. It would be of advantage to list down the principles that were noted by the Hon'ble Supreme Court emerging from the discussion on the basis of various judgments. These principles are listed as under:-
"(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 it 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 CIVIL WRIT PETITION NO.3902 OF 2010 :{ 8 }:
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."
The Hon'ble Supreme Court further went on to observe in Baikuntha Nath Das (supra) that interference is permissible only on the grounds mentioned in (iii) above and this object is also discussed in the judgment itself. A limited judicial scrutiny of an order of compulsory retirement would be on the ground of malafide, or that it is based on no evidence or that it is arbitrary in the sense and no reasonable person would form the requisite opinion on the given material, i.e., if it is found to be a perverse order. A view, thus, is possible that even if the portion of the report getting colour from the criminal case is excluded from consideration, the impugned order cannot be termed as perverse order and this view could be formed CIVIL WRIT PETITION NO.3902 OF 2010 :{ 9 }:
on the basis of the material that was before the competent authority to form an opinion and to pass the impugned order of compulsory retirement.
Reference may also be made to the case of Bishwanath Prasad Singh Vs. State of Bihar and others, (2001) 2 Supreme Court Cases 305, where it is observed that Fundamental Rules 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 was necessary to compulsorily retire him. It is held that it is neither a punishment nor a penalty with loss of retiral benefits. Compulsory retirement in public interest under service rules is like premature retirement. It does not cast any stigma. The Government servant shall be entitled to pension actually earned and other retiral benefits. The Hon'ble Supreme Court also observed that so long as the basis of the opinion about the order of compulsory retirement in public interest is formed bonafide, the same cannot be ordinarily interfered with by judicial forum. Such an order may be subject to judicial review on very limited grounds such as the order being malafide, based on no material or on a collateral ground or having been passed by an authority not competent to do so. The object of such compulsory retirement is not to punish or penalise the government servant but to weed out the worthless who had lost their utility for the administration.
Accordingly, I am of the view that no case for interference CIVIL WRIT PETITION NO.3902 OF 2010 :{ 10 }:
in exercise of writ jurisdiction is made out. The writ is dismissed.
July 06, 2011 (RANJIT SINGH ) khurmi JUDGE