Punjab-Haryana High Court
Nirotam Parshad vs State Of Haryana And Others on 9 December, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Civil Writ Petition No.13678 of 2011
Date of decision: 09.12.2013
I.
Nirotam Parshad
..... Petitioner(s)
Versus
State of Haryana and others
..... Respondent(s)
II.
Civil Writ Petition No.22042 of 2012
Date of decision: 09.12.2013
Nirotam Narotam Parshad
..... Petitioner(s)
Versus
State of Haryana and others
..... Respondent(s)
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr.P.L.Verma, Advocate,
for the petitioner.
Mr.Sunil Nehra, Sr. DAG, Haryana
*****
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
RAJIV NARAIN RAINA, J.
This order will dispose of two writ petitions, i.e., CWP Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 2 No.13678 of 2011 and CWP No.22042 of 2012 as the disputes are between the same parties and can be decided by one order which for convenience is broken into two parts.
2. The date of birth of the petitioner is 19.4.1956 and in the normal course he would have retired from service on 30.4.2014. He completed the age of 55 years on 9.4.2011. First CWP No.13678 of 2011 was filed to lay challenge to the notice of compulsory retirement issued on 7.5.2011 which informs the petitioner that on the expiry of three months statutory period, the petitioner would stand retired from Government service. This notice was issued at the stage of review at the age of 55 years for retention in service. Notice of motion was issued on 1.8.2011 together with notice regarding stay. However, no stay was granted and by virtue of the notice the petitioner stands retired with effect from 1.8.2011 subject, however, to the final outcome of this writ petition.
3. The second CWP No.22042 of 2012 has been filed by the petitioner to impugn the order dated 2.5.2011 communicated a few days before the issuance of notice of compulsory retirement whereby the major punishment of stoppage of two annual grade increments with permanent effect was inflicted upon the petitioner after inquiry into the misconduct alleged. His appeal against the penalty order was rejected on 5.7.2011 and the revision remained unsuccessful on 21.10.2011 before the Director General of Police, Haryana, Panchkula.
4. It would be in the fitness of things that this Court first examines the order dated 2.5.2011 to test its correctness on judicial review. In case the order is quashed, it may impact the validity of the notice of compulsory retirement since the notice was not issued by way of inflicting punishment, Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 3 but in exercise of absolute right vesting in the State to retire public servant in public interest for lack of continued utility in service or for continued inefficiency.
5. The facts of CWP No.22402 of 2012 are first taken up. The petitioner was promoted as a Sub Inspector on 1.1.2008 based on the claim of possessing 75% good or above annual confidential rolls. Though he has been assessed as average for the years 2008-09, 2009-10 and 1.4.2010 to 23.8.2010 and had had 6 minor punishments of censures inflicted on him, the last of which is the impugned order challenged in this petition. He, however, pleads that in none of those cases, has his honesty and integrity been doubted.
6. An FIR No.201 dated 16.8.2010 came to be registered in Police Station Kherki Daula against two private persons who ran a business under the name and style of M/s Anubhav Apparels, Noida. The FIR was registered under Sections 420, 504, 506, 120B read with Section 34 IPC. The petitioner was the Investigating Officer in the above case. In the course of investigation, he claimed that on 19.8.2010 along with other police officials, he went to the business premises of the accused. He was told there by them that compromise talks were going on between the parties and therefore, legal action, if any, should wait. He says that he was informed by the accused and their Advocates that the matter has been compromised on payment of cheque of ` 5 lacs to the complainant but the final compromise/settlement would take some more time. The accused assured the petitioner that they would themselves visit the Police Station Kherki Daula on 22.8.2010 and inform him of their decision. The final settlement was put in motion and a sum of ` 7,20,000/- were agreed to be the price of Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 4 compromise. Accordingly, on 27.8.2010, the complainant submitted an affidavit in Police Station Kherki Daula for cancellation of FIR. The FIR stands cancelled.
7. A departmental inquiry was initiated against the petitioner on the allegations leveled by the accused side that the petitioner had put pressure on them in delivering cheque of ` 5 lacs to the complainant side. For this misconduct etc., a domestic inquiry was initiated. In the inquiry, the petitioner was held guilty. The finding was that pressure was exercised by the petitioner to take the matter to a particular end. A show cause notice dated 27.4.2011 was issued to the petitioner proposing punishment of stoppage of three annual increments with permanent effect. He filed reply on the next day. It was considered but the petitioner was held responsible and negligent in the performance of duties on the ground that after the registration of the case, it was his duty as an Investigating Officer to arrest the accused and not to involve himself in any type of compromise which effort lies in the domain of the Court. Ultimately, the department imposed punishment of stoppage of two increment with permanent effect on the petitioner vide impugned order dated 2.5.2011 (P-2). As stated earlier, the appeal and the revision failed. When accused Parmarth Kapoor appeared in the witness box in the inquiry he was asked a question by the petitioner in cross examination whether the former put his signatures on the compromise deed. He answered: 'yes'. The petitioner thus draws the inference from the fact that once Parmarth Kapoor had delivered the cheque of ` 5 lacs to the opposite party under pressure on 19.9.2010 where was the occasion for him to pay the remaining money in terms of the compromise. Since the matter was compromised, there was a happy end to the dispute and the petitioner Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 5 cannot be faulted or held to have acted outside the sphere of duty in investigating the case. Therefore, the impugned orders are legally bad and call for interference by this Court. He submits that it is a case of no evidence worthy of proving charges of misconduct levelled against him. The petitioner points to the preliminary inquiry conducted by the Assistant Commissioner of Police, Bhondsi, Gurgaon on the complaint dated 20.8.2010 of accused Parmarth Kapoor wherein he held the petitioner guilty in the matter vide his report dated 21.8.2010. However, during the cross- examination in the regular departmental inquiry, he admitted that he neither called the complainant nor the petitioner with regard to the complaint. So in the absence of the complainant to support his complaint, the petitioner could not have been held guilty with respect to that complaint as the same affected his right of cross-examination of the complainant. There is, therefore, no credible evidence available on record to prove the charges. And the punishment order deserves to be set aside for these reasons. This is all that the petitioner says in the petition.
8. On notice of motion having been issued, the respondents have filed the written statement and have contested the case and supported the impugned orders as legal and valid. The petitioner is said to have committed grave departmental misconduct in the investigation of the FIR which showed negligence, carelessness and indiscipline not expected from a police official. Due process was followed at the inquiry which cannot be faulted and has wisely not been disputed by the petitioner in the writ petition nor before the police authorities or before the administrator sitting in revisional jurisdiction. An opportunity of personal hearing was also given to the petitioner on 29.4.2011. The punishing authority considered the matter and Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 6 awarded less punishment than what was proposed.
9. The petitioner has not filed replication to the written statement. Learned counsel for the petitioner submits from the statement of prosecution witness No.5 Parmarth Kapoor that when the witness was asked whether the police misbehaved and used any 'wrong language' when the petitioner reached their office, the reply was, 'No'. The signatures on the compromise, as stated earlier, were admitted. On the other hand, the defence witnesses are both constables who have tried to support the case of the petitioner. The defence is that the petitioner did not put any pressure on Parmarth Kapoor for handing over the cheque of ` 5 lacs to the opposite party neither had he helped the parties in reaching the compromise. The inquiry report mostly consists of narration of statements of the witnesses but what the inquiry officer concludes laconically is best put in his own words: -
"After this defaulter was given time as per rule for submission of written argument. The defaulter has submitted his written argument within time. Same was carefully examined the defaulter in his written argument has stated that he has he neither put any pressure on Parmarth Kapur for handing over check of 5 lacs nor he help in reaching any compromise and defence witness has duly supported his version. But I am inclined to agree with this as Prosecution witness no.5 Parmarth Kapur (complaint) has stated in.
This enquiry regarding handing over to check of Rs. 5 lacs.
In this departmental enquiry the evidence led by prosecution witness, statement of defence witness, written arguments, documents and enquiry leads to charges proved against defaulter.Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 7
Sd/-
Enquiry Officer Assistant Police Commissioner Udyog Gurgaon"
10. The Inquiry Officer may have re-told the story by paraphrasing the statement of witnesses, both prosecution and defence, in his report and by reproducing questions put and answers given in examination and cross examination of witnesses but I find that there is apparent lack of reasoning contained in the operative part of the inquiry report which does not disclose any serious application of mind to know what weighed in its mind in drawing up the report. From what I imagine the pith and substance of the charge to be is that an FIR came to be registered in what may largely be called a civil dispute relating to trade relations between the complainant and the accused in their business dealings with eachother. The charge really is that the moment the FIR was registered and the criminal law set in motion, then the petitioner should have acted in furtherance of the theory of the police State that prosecute to the hilt, trouble people, harass them, present a criminal final report/challan under section 173 of the Code of Criminal Procedure, 1973 in the trial court for good, bad or indifferent reason and to set the criminal court into motion, not so much for the sake of prosecution but for the sake of persecution. This shows a lopsided approach and the terrible mind set of the police department and its keepers of conscience ingrained over many decades very often motivated by considerations other than law. This is like catch, arrest, harass and throw in jail persons accused of wrong doing or perceived crime, put them in Column I or II ad libitum even in cases which largely originate from civil disputes. Even assuming that a policeman as an Investigating Officer has helped parties to reach Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 8 compromise and that compromise is arrived at and payments are made accordingly through the terms of the compromise deed bearing signatures of the parties which have not been resiled from in the trial/inquiry, then in my view, the police may have done a good thing indeed. Had there been concrete evidence of undue pressure, harassment and the like, the case would have taken a different turn and no sympathy could have been shown but to say that compromising the matter is not within the domain of the police but only in the Court, would be missing the point that the police, after all, have to restore to law and order. If the law and order is restored between warring private persons through an innocuous intervention and peaceful means justifying the ends, why should the Police Department then not recognize such an act as fruitful, beneficial and useful to the society at large? The trial court comes in when crime is plainly committed in settling civil disputes and law is taken in hand. The trial court would have been saved of one less case in what is really a pure civil dispute which could be settled in the civil court between the parties and if the criminal trial is put into motion, the parties could easily compromise the matter before the Court as the offences charged were compoundable and open to compromise and peace restored between the parties. If the petitioner took slow steps on the strength of hope of compromise when told that the compromise or reconciliation process was underway, then I think it would be wholly unfair for the police to have continued with its tirade, expecting as a matter of due course properly so called in meting out undue and unnecessary harassment of citizens only with a view to present a challan before the trial court under misplaced compulsion only to score brownie points for the police or for the petitioner to promote his career with figures and statistics. In any case, the Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 9 findings of the Inquiry officer are too weak in their reasoning to support the charges levelled against the petitioner. This Court cannot remain a hapless, silent spectator to what really happened at the grass root level failing to look beyond mere empty formality of due process and procedure followed at the inquiry. Even assuming that the deed done was wrong it was for good reason.
11. I think the charge is exaggerated and wholly disproportionate to the accusation. Even if the petitioner soft peddled the investigation, even then the charge was not that money passed to the petitioner or was demanded to strike a compromise in a particular fashion. That was not the charge. That was certainly not the charge, which if present would have dramatically changed the complexion of the entire case. After the inquiry report was made, the consideration in appeal and revision appears to be mechanical subsequently and does not show a courageous bent of mind of the administrators to get to the bottom of the matter to notice the real intention to leave parties to heal their wounds. The defence taken in the written statement is also myopically mechanical and hides behind the smoke-screen of the inquiry report without looking to the core reason of the petitioner's grievance expressed pithily before this Court and argued crisply by his learned counsel. He may be right when he says this is a case of no evidence against his client and even if it were to the extent the witnesses have spoken, there may not be sufficient reason to dunk the petitioner in the muddy pool of misconduct. On suspicion; on not travelling beyond authority conferred; only to exercise it to the hilt the power to do; and by not taking the alleged culprits to book, then it is neither the case of the accused nor of the complainant that the petitioner asked for illegal Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 10 gratification or was actively involved in the episode. That is not even the charge or whisper of it in the charge sheet. After all the charge is that the petitioner entered the house of accused Rishi Kapur on 19.8.2010 with the intention to 'make compromise' by putting pressure on him to deliver a cheque of ` 5 lacs. Thus, the petitioner actually has been accused of having trespassed into premises without warrants and of not properly investigating the case and by reason of delivery of cheque alone is guilty of wrongdoing and has shown lack of police character which is said to be bad for the discipline of the police force. This Court is conscious that it does not sit as a court of appeal over the findings recorded by the Inquiry Officer or in the disciplinary proceedings or to hold that the misconduct was not made out in order to justify imposition of major penalty of withholding of two increments with permanent effect but that does not mean the court should not examine the weight of evidence to satisfy itself as to the correctness of administrative action taken on such evidence. If this were the extent of the parameters of judicial review, I am afraid it may amount to abdication of powers vested in this Court to do justice. The lenient view taken of reducing the stoppage of increments from 3 to 2 is not palliative of administrative action, should not serve as a make believe to induce this Court to view the punishment as one reduced and therefore, there has been due application of mind. After much thought, this Court veers itself to the view it proposes to take that the action taken was neither fair nor reasonable.
12. Consequently, the impugned orders are quashed being in abuse of power of inflicting penalty. With the passing of this order, the major punishment imposed which is subject matter of the present writ petition, and further keeping in sight the fact that the impugned penalty order was passed Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 11 only five days before the compulsory retirement notice was issued leaving the petitioner virtually remediless, is found to be both excessive and untenable and as such the same would have no impact on nor would furnish relevant material for being used against the petitioner in the review exercise carried out of his case for retention in service beyond 55 years. However, if there are sufficient reasons de hors the subject matter of this case, in the other one to justify compulsory retirement then the Court would need to proceed to examine the next case where the notice/order of compulsory retirement is under challenge.
CWP No.13678 of 2011
13. The impugned order of compulsory retirement has been passed against the petitioner during the course of consideration of his case for extension in service beyond 55 years. Notice of compulsory retirement was issued in exercise of power under rule 3.26 (d) of Punjab Civil Services Rules, Volume-I, Part-I read with rule 9.18 (1) (c) of Punjab Police Rules, 1934 as applicable to the State of Haryana. Haryana Government policy requires 70% or above good reports for retention in service. The integrity of the Government servant should not have been doubted during the last 10 years. The material that was used against the petitioner to issue notice of compulsory retirement were as follows : -
"I) Awarded punishment of censure for not complying with the instructions issued by the senior officers vide OB No.703 dated 29.10.93.
II) Awarded punishment of censure for not complying the instructions issued by the senior officers and do not work carefully under proper procedure vide OB No.782 dated 3.12.93.
III) Awarded punishment of censure for not Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 12 taking interest in service of summons etc. and not submitting explanation vide order No.1124- 26/Steno dated 3.12.93.
IV) Awarded punishment of censure for submitting wrong information in the night intervening 11/12.5.94 that SHO PS Tauru had been conducting patrolling vide OB No.370/31.05.94.
V) Awarded punishment of censure for tagging posters as thieves, gamblers, bad elements etc. on the clothes of three accused arrested in case FIR No.258/2K, 259/2K u/s and 260/2K u/s 13A/3/67 G. Act while posted in PS Punhana and walked with them in procession in the market before producing them in the Court and caused violation of their human rights vide OB No.812 dated 17.09.03.
VI) Awarded punishment of censure. SI Narotam Parshad has to prepare an inventory u/s 50A for searching of accused in presence of GO or Ilaqa Magistrate during the investigation of case, but he failed to do so. Similarly he failed to produce the case property in the Court, hence he was awarded penalty of censure for these lapses vide No.33201-06 dated 8.10.10.
VII) Awarded punishment of stoppage of two annual increments with permanent effect vide order dated 2.5.2011 for making undue influence on the named accused and extorted a Cheque of Rs.5 Lakhs, for the complainant in case FIR No.201 dated 16.08.2010 u/s 420/504/506/120- B/34 IPC PS Kherki Daula by accompanying with the complainant. Order attached as annexure R-1."
Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 13
14. Three censures were awarded to the petitioner in 1993, one in 1994, another censure was awarded on 17.9.2003 which last one was for a rather horrible and obnoxious thing to do to parade three persons accused of crime in a procession in the market place before producing them in Court causing serious human rights violation. This minor punishment of censure was awarded within the ten year zone of consideration and is, therefore, relevant. There is another censure awarded on 8.10.2010. And that is all that there is against the petitioner since the consideration of point (VII) (supra) has suffered judgment today by the first part of the order and cannot therefore be read as usable material against the petitioner to order compulsory retirement till the life of the judgment and order.
15. It is obvious that the punishing authority itself did not view the instances at (V) and (VI) (supra) sufficient to award punishment of anything more than censure. Censure is the most diluted form of punishment which is above Warning and a shade worse but still has value. In the written statement, the following has been averred by the police department in defence of action taken: -
"The petitioner extorted a cheque of Rs.5 Lakhs for the complainant from the accused named Parmarth Kapoor by using undue influence and accompanied the complainant. It shows that he is negligent, careless and indisciplined in performing fair and proper investigation and has committed grave departmental misconduct which clearly reflects his doubtful integrity. On this misconduct, regular departmental proceedings were conducted in accordance with law and principles of natural justice. He was awarded punishment of stoppage of two annual increments with permanent effect.Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 14
The service record of the petitioner has been examined carefully and found unsatisfactory for the sake of public interest as per Govt. instructions. As such he was not found fit for being retained in service beyond the age of 55 years. In similar situated case the Hon'ble High Court upheld the order of non granting extension beyond the age of 55 years. A true copy of the order dated 06.07.2011 passed in CWP No.11059/11 by Ld. Single Judges annexed as annexure R/V. Thus the order passed by the answering respondent is legal, valid and justified."
16. If reliance is placed on the decision of the learned Single Judge of this Court taken in CWP No.11059 of 2010 decided on 6.7.2011 which was also a case of compulsory retirement, then it is found that the petitioner, in that case was held guilty by the National Human Rights Commission, New Delhi on 4.5.2000 for human rights violation in which a penalty of ` 1,40,000/- was imposed upon the delinquent and his associates. The learned Single Judge found as follows : -
"The respondents have now filed an additional af- fidavit of the Commissioner of Police, Gurgaon, which reveals rather disturbing state of affairs. The petitioner was stated to be under currency of pun- ishment. As per the affidavit, the petitioner was held guilty by National Human Rights Commis- sion, New Delhi on 04.05.2000 in which penalty of ` 1,40,000/- as compensation was imposed on him and his other associates. The allegation in this re- gard as mentioned, would disclose that seven chil- dren aged 7 to 12 years belonging to Balmiki Community, while playing cricket inside the park Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 15 Om Nagar Colony Gurgaon, near by the house of Daya Nand ASI had gone inside the compound of the house to retrieve a ball. On a report to the Po- lice Post Khandsa Road, by the ASI, the children named Sandeep, Jatinder, Pawan, Rajender, Raju, Sunil and Sandeep were brought to the Police Post Khandsa Road. They were stripped naked, beaten up and were paraded in Om Nagar and Shanti Na- gar areas in procession while their parents looked as helpless spectators of the procession following their children. The children were made to chant that their action of going into the compound to col- lect the ball was wrong and they were, thus, hu- miliated. They were taken again to the Om Nagar Park, made to knee down and were kicked and caned by the police. They were made to clean the surroundings of the police post. These acts on the part of ASI Daya Nand, HC Ram Tirath and Con- stable Raj Kumar established that they had abused their power against the children, who had not com- mitted any offence. The children were, thus, hu- miliated, stripped naked and paraded in the locali- ties and were beaten up, which conduct on the part of the police personnel, apart from a highly de- praved, constituted gross violation of the human rights of the children. This blot was considered se- rious enough to term the service record of the peti- tioner to be unsatisfactory to deny him extension beyond 55 years of age in public interest."
17. The matter with respect to Parmarth Kapoor has been taken to the level as one which reflects doubtful integrity but the charge was not of doubted integrity. It appears that reasons were being created to justify an or- Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 16 der of compulsory retirement. It is stated in the written statement that the examination of the record of the petitioner revealed that he had earned ad- verse ACRS for the periods 1.4.2008 to 31.3.2009, 1.8.2009 to 31.3.2010 and 1.4.2010 to 23.8.2010. These adverse ACRs graded the petitioner 'average'- . The period of consideration in the case of the petitioner was from 2001 to 2011. If the petitioner had 3 average ACRs, then 7 were good because they are neither spoken of nor commented upon as adverse. Therefore, 70% and above retention policy stands satisfied making it insufficient to sustain the notice of compulsory retirement or not to so order. What is left now is pun- ishments No.(V) and (VI) above. The punishment of censures awarded (V) and (VI) above do not appear from the record to have been the result of regular charge sheets issued for any major misconduct for which inquiry was held and punishment imposed. They appear to have been awarded fol- lowing punishment procedure meant for minor misconduct, but they are at the same time, with no odour of financial misdemeanor, corruption or the like. Though compulsory retirement is not a punishment nor any stigma at- taches to it as explained in Baikuntha Nath Dass and anr. v. Chief Dis- trict Medical Officer, Baripada and Anr., AIR 1992 SC 1020 and action taken still remains in the realm of subjective satisfaction but subjective sat- isfaction has to be tried on the touchstone of objective assessment and on the doctrine of reasonableness. When seen from this angle, the respondents may have pointed out to punishments of censure (I) to (IV) above to make it look like a case worthy of dismissal. Punishment No.(V) though appears to this Court to be highly reprehensible but this Court is not too sure whether it could alone constitute ground for issuing notice of compulsory retirement. After all, it was passed 8 years prior to the date and year of consideration of Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 17 the petitioner's case for retention in service beyond the age of 55 years. The police also did not think much of it when they awarded diluted censure. The award of punishment of censure inflicted on 17.9.2003 did not deter the re- spondents from promoting the petitioner as Inspector on 1.1.2008 thereby diluting the effect of censure further and marginalizing it. It is not urged be- fore this Court that in any of the ACRs for the relevant period used against the petitioner, his honesty and integrity were ever doubted. The incident of 2011 has been tried to be given the flavour of integrity doubtful but that is far from the truth in view of findings recorded in the first part of this order.
18. Mr. Nehra appearing for the State heavily relies upon two decisions of this Court, one rendered by me in CWP No.5792 of 2012; Rohtash Singh v. State of Haryana and others decided on 8.10.2013 and one by the learned Single Judge of this Court in CWP No.17028 of 2011; Sujjan Singh v. State of Haryana and others decided on 8.7.2013.
19. In Sujjan Singh's case, this Court dealt with a notice of compulsory retirement served on a police official. The Court found that the order imposing minor punishment of stoppage of two annual increments without cumulative effect had been nullified by a declaration of the Civil Court. The punishment was imposed after holding full-fledged inquiry and the sting of the punishment order though had ceased to exist but the underlying misconduct was found to be one reflecting adversely on the policeman's integrity. That is where the vital difference lies. In addition thereto, Sujjan Singh has been awarded penalty of censure for indulging in dishonest dealings during the course of investigation of an FIR in 2005. Sujjan Singh had received punishment of censure in 2007 for being found sleeping in Police Station instead of performing duty. These punishments Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 18 were close to the heels of notice of compulsory retirement and were of recent origin. The Court held that "the petitioner has been imposed penalties of censure, one of which reflected on his integrity. The other punishment was for inefficiency/negligence". In this view, the learned Single Judge did not find it a fit case for interference and merely because the punishment order of one increment without cumulative effect was minor that did not erase the reasons which led to the award of censure.
20. In Rohtash Singh's case, this Court was confronted inter alia with an award of censure against the petitioner for not being found on Naka duty as ordered by superiors when the offending occurrence of looting of an amount of ` 5,50,000/- was reported within jurisdiction of his Police Station, Suraj Kund where he was in-charge of affairs. The incident was adversely commented upon and was duly recorded in the adverse Annual Confidential Reports of Rohtash Singh for the year 2008-2009 while he was compulsory retired in 2011 and the incident was in close proximity of action taken. In such circumstances, I upheld the notice of compulsory retirement as not one which suffered from any perversity, irrationality or arbitrariness. I did not think that the record taken into consideration in that case was either inconsistent or not germane to action taken. In this case, however, I find that punishments (V) and (VI) may reflect lack of moral integrity but not lack of financial integrity which are corruption and the like. If punishment No.(V) is the only reason to support a notice or an order of compulsory retirement where a person is being tested on the question of retention in service on the touchstone of efficiency, deadwood, etc. and whether his services are of any further use to the employer, then I tend to think on the facts of this case that this punishment would operate as a Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 19 punishment of compulsory retirement itself and therefore, may attach stigma on the petitioner. Still further there are no materials on record justifying a finding that the petitioner has outlived his utility his efficiency not having been questioned in the decision making process. Having written the opinion in Rohtash Singh's case, I feel more sensitized to examine cases of censure with greater care and caution and have, therefore, dwelt in this case with greater circumspection while testing the correctness of the impugned order in its larger perspective, in order to try and secure the ends of justice as I felt. Justice after all is relative depending and measured from case to case with each case turning on its own special facts. So long as known legal principles when involved are applied with due care and caution to justify the means to the ends, but not the ends to the means where the Court may falter then the venture is good enough. In such cases what is relevant is the sum total impact on the Court of all facts and circumstances presented before it for decision making, to balance the scales as finely as possible between the authority and the subject. There can be no exactitudes in this. If there is no stink of doubtful integrity in the ACRs, then the petitioner has 70% good and above confidential rolls with three average gradings to his credit. Punishment (V) and (VI) have receded into the woodwork and to my mind are not alone sufficient to activate a notice of compulsory retirement under rule 3.26 of the Civil Service Rules read with rule 9.18 (1) (c) of the Punjab Police Rule, 1934 as applicable to the State of Haryana. The action is mostly arbitrary and therefore, the order of compulsory retirement is not sustainable and is, therefore, quashed. Since the petitioner has still some time left for superannuation, he would be reinstated to service forthwith with all consequential benefits flowing therefrom.
Kumar Paritosh2013.12.10 14:36 I attest to the accuracy and integrity of this document CWPs No.13678 of 2011 & 22042 of 2012 20
21. Accordingly, both the writ petitions are allowed in the terms stated above and for the reasons recorded in this judgment in both its parts. No costs.
(RAJIV NARAIN RAINA) JUDGE December 9, 2013 Paritosh Kumar Kumar Paritosh 2013.12.10 14:36 I attest to the accuracy and integrity of this document