Punjab-Haryana High Court
Ranbir Singh vs The State Of Haryana & Others on 24 December, 2008
Author: K Kannan
Bench: Mehtab S Gill, K Kannan
IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
CIVIL WRIT PETITION 8403 OF 2006
DECIDED ON :24-12-2008
Ranbir Singh
....Petitioner
versus
The State of Haryana & others
....Respondents
CORAM : HON'BLE MR.JUSTICE MEHTAB S GILL
HON'BLE MR.JUSTICE K KANNAN
Present: Shri R.K.Malik, Senior Advocate, with Shri Parveen Kumar Rohila,
Advocate, for the petitioner
Shri Harish Rathee, Senior DAG, Haryana
K KANNAN, J
I Scope of enquiry
1.The head constable who had been fighting for expunction of remarks in
his ACR lost the first battle when his representations were rejected and before he could
take any action, he was visited with an order of compulsory retirement on the ground
that his services were no longer required in the public interest. The writ petition
challenges the order of the Inspector-General of Police dated 11-07-2005 rejecting his
application and the order of compulsory retirement that was passed on 04-04-2006.
II Details of advese entries in the ACR
2.The petitioner had joined the police department on 28-04-1978 as a
Constable and later promoted as Head Constable on 25-12-1995. He had a blemished
service record all along and was graded as a disciplined person with no complaint
against integrity, having been further assessed as reliable with good moral character.
ACR entries took a tumble when FIR had been registered against him along with
another person in FIR No. 289 dated 17-09-2001 for the alleged offences under
sections 170/323/342/384/419/420/452/506 read with section 120-B IPC with Chandni
Bagh police station. This police complaint had a direct impact in the remarks made by
Superintendent of Police and in the ACR between the period from 01-04-2001 to 03-11-
2001 . The following entries were made:-
"Discipline - Bad
Integrity - Doubtful
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Reliability - Not reliable
Conduct - Not upto mark
Special Remarks - Case (FIR No. 289 dated 17-09-2001 under
sections 419/420/342/452/170/384/323/506
/120-B IPC was registered at Police
Station Chandni Bagh"
III Rejection of petitioner's representation and resultant action of compulsory
retirement
3.The petitioner had made representations against the adverse entry
stating that the criminal case was not true and it had been foisted against him.
Simultaneously the departmental proceedings had been initiated against him and he
was exonerated when the report of the Enquiry Officer was accepted on 10-06-2003.
The representation filed by the petitioner against the adverse remarks was rejected by
the Inspector-General of Police, Rohtak Range on 03-03-2005 and the further appeal to
the Director-General of Police also did not result in favourable orders, when it was
passed on 11-07-2005.
4.Soon thereafter, the Director-General of Police had served show-cause
notice upon the petitioner on 27-09-2005 (Annexure P6) for compulsory retirement from
service and the petitioner had set out his objections therefor. Along with show-cause
notice, the grounds/material for compulsory retirement had been set out replicating the
adverse entries found in the ACR after setting out the adverse entries, the
communication recited "in view of the above resume of service record of HC Ranbir
Singh No.813/PPT, he has outlived his utility as Police Officer and is not fit for
retaining in service any further. It has, therefore, been proposed to retire him
compulsorily in the public interest under PPR 9.18(2)".
IV Acquittal after show cause notice
5.Immediately, thereafter the criminal Court had rendered a judgement
acquitting him on 01-10-2005 . The petitioner gave his representation pointing out to
the effect that the case had ended in acquittal and the material on which the show-
cause notice for compulsorily retiring him had been taken during the pendency of the
criminal case against him was no longer to be taken into consideration, having regard to
the fact that he had been acquitted. The Director General of Police, however, passed
an order on 14-04-2006 compulsorily retiring him and even in the said order, he had
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referred to the adverse entry in his ACR for the period between 01-04-2001 to 03-11-
2001 and that the decision was being taken after considering the reply taken by the
petitioner . The order also purported to have secured the sanction of the State
Government in its memo No.5/28/2006-3HGI dated 22-02-2006.
V State's justification
6.To the challenges made by the petitioner as regards expunction of
adverse entries and quashing the order of compulsory retirement, the response from the
State Govt.is predictable:-(i)at the time when the decision had been taken to reject the
adverse entries in the ACR, the criminal case was still pending and the rejection of his
representations has become final. The decisions have been taken on an objective
consideration of all relevant facts and, therefore, it was not justiciable;(ii) the order of
compulsory retirement is not a punishment and the petitioner shall have no ground to
assail the decision and there is hence no warrant for intervention under Article 226 of
the Constitution of India.
VI Relevant provision for compulsory retirement
7.It is well known proposition that compulsory retirement itself is not a
punishment and the Courts have held that there is not even a scope for observing the
principles of natural justice. (Ref.Baikunthnath Das versus Chief District Medical
Officer 1992(2) SCC 92). The Punjab Police Rules, 1934 with its amendment to
Haryana details the various forms of punishment in paragraph 16 and the compulsory
retirement itself does not find a place as form of punishment. The provision for
compulsory retirement obtains reference under the heading "retiring pension" under
Rule 9.18 of PPR. Sub-clause (2) of the said rule reads as follows:-
"The Inspector-General of Police may with the previous
approval of the State Govt., compulsorily retire any police officer other than
belonging to IPS or Punjab State Police Services who have completed 10
years'qualifying service without giving any reasons. Any officer who is so
compulsorily retired, will not be entitled to claim any special compensation for his
retirement."
Note-I The right to retire compulsorily shall not be exercised except when it is in the public
interest to dispense with the further services of an officer, such as on account of inefficiency,
dishonesty, corruption or infamous conduct. Thus the rule is intended for use-
(i) against an officer whose efficiency is impaired but against whom it is not desirable to make
formal charges of inefficiency or who has ceased to be fully efficient (i.e. when an officer's value
CWP 8403 of 2006 --4--
is clearly incommensurate with the pay which he draws) but not to such a degree as to warrant
his retirement on a compassionate allowance. It is not the intention to use the provisions of this
rule as a financial weapon, that is to say, the provision should be used only in the case of an
officer who is considered unfit for retention on personal as opposed to financial grounds;
in cases where reputation for corruption, dishonesty or in favour conduct is clearly established
even though no specific instance is likely to be proved.
Note 2- The Officer shall be given an adequate opportunity of making any representation
that he may desire to make against the proposed action and such representation shall be taken into
consideration before his compulsory retirement is ordered. In all cases of compulsory retirement of
enrolled police officers, the Inspector-General of Police shall effect such retirement with the
previous approval of the State Government in accordance with the instructions, if any, issued by the
Government on the subject from time to time."
VII Compulsory retirement - Procedural requirement
8.All that the law, therefor, requires is that the Officer shall be given an
adequate opportunity to make any representation that he may decide to make against
the proposed action and such a representation shall be taken into consideration before
a final decision is rendered. Relying on this provision, the counsel for the State would
contend that the representation had been taken note of and the ultimate decision had
been rendered. The only relief that the law admits of through judicial pronouncements
had been the issue as to whether the decisional exercise had been rendered after duly
considering the relevant factors and the interference of the order of compulsory
retirement can only be on the satisfaction of the Court that the order passed is malafide
or it is based on no evidence or it is arbitrary in the sense that no person will come to
the conclusion that authority has taken (vide ASI Dilbagh Singh alias Rai versus
State of Haryana 1999(2) SCT 56 (P&H). Thus, compulsory retirement is resorted to
when an employee is liable to be treated as dead wood and jettisoned but does not
deserve to lose the right to terminal benefits by the fact that it is not a punishment,
however, bringing to an end service of an employee prematurely. It is but imperative
that the decision is never arbitrary but is based on relevant materials.
VIII Pendency of criminal case- only material for decision
9.There is always a difference between compulsory retirement which is in
public interest and compulsory retirement by way of punishment as laid down by the
Hon'ble Supreme Court in Bishwanath Parsad versus State of Bihar 2001(2) SCC
305. Rjection of representations against advese entries as well as show-cause notice
against compulsory retirement refer only to the fact of pendency of criminal case which
by its necessary implication reveals that it is that case which is taken as a material to
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assess the suitability of the employee and the basis for the assessment of his conduct.
It is nowhere seen that it was ever brought to the attention of either the SP or the
Inspector-General of Police or the still higher authority of the Director General of Police
that they were aware of the fact of the petitioner's acquittal from the criminal case and
the fact that even departmental enquiry had exonerated him.
10.It was pointed out by the counsel for the petitioner that yet another person
who had been implicated in the same criminal case had also obtained the adverse entry
but when he was acquitted, the adverse entry had been expunged but it was not so
done for the petitioner only because at the time when the representation was disposed
of, the result of the criminal case had not been made available. This issue is not without
relevance for a similar entry for yet another employee who had been similarly entered
with adverse remarks found the expunction of remarks happening when the criminal
case ended in acquittal. It is not possible to believe that any other material was
available or there were any other considerations for the Government to apply a different
yardstick for the petitioner alone.
IX Examination of original records undertaken
11.We had sent for the entire original file relating to the petitioner on the subjects
dealing with compulsory retirement and the ACRs recorded over a period of time from
17-01-1991 till the date when he was compulsorily retired. We find that the petitioner
had been consistently recorded as either good or very good and on the only occasion
for the period from 01-04-1991 to 03-11-2001, his discipline has been stated to be bad ;
Integrity -doubtful; Reliability-not reliable;Morality-poor, bad moral character;General
remarks involved in FIR No. 289 dated 17-09-2001 registered under sections
170/323/342/384/419/420/452/506 read with section 120-B IPC.
12.It is not possible to see from the records that the Reviewing Officer had any
other objective criterion to make adverse entries than the fact of his involvement in the
criminal case. The representation made against the adverse remarks has been
disposed of by the Inspector General on 03-05-2005 with the cryptic observation that the
representation was duly considered and rejected as devoid of merit. The result of the
criminal case had not been available at the time when the subject was taken up by the
Inspector General of Police and that had entailed the rejected of his representation.
The counsel also refers us to the relevant instructions which detail the reasons to be
recorded whereever adverse entries are made. He states that no reasons have been
given in the ACR for the adverse entries apart from the reference to the pendency of a
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criminal case. His contention was that there was no other material before the
Reviewing Officer than the pendency of the criminal case to make the adverse entry and
when the criminal case ended in acquittal, the entry was also required to be expunged.
He would further contend that even apart from the criminal court judgement, the
departmental proceedings which had been taken up against the petitioner, had
exonerated him and the retention of adverse entry in the ACR was, therefore, most
unjust.
13.In a normal situation, we would have merely set aside the impugned
orders rejecting his claim for expunction of the adverse remarks and sent the matter
back to the respondents for re-consideration of the issues in the light of the acquittal in
the criminal case and the exoneration of the charges in the departmental proceedings.
However, that exercise cannot be done in a situation where the adverse entry itself has
been taken to be a ground for consideration of the matter whether he should be retained
in the department or not on his completing 25 years of service. Such an exercise had
been undertaken and the petitioner had been ordered to be compulsorily retired. The
order of compulsory retirement follows close on the heels of the petitioner's
representation for expunging the adverse remarks. On verifying the original files on the
subject of compulsory retirement, we find that the adverse entry recorded is for the
period from 01-04-2001 to 03-12-2001 has been the singular aspect which has gone
into consideration for compulsorily retiring him. The result of the criminal case itself
does not appear to have been gone into reckoning since the file does not make any
reference to the representations of the petitioner drawing attention of the authorities to
the effect that the criminal case had ended in acquittal and the departmental
proceedings had exonerated him. The entire file makes reference only to the fact of
the pendency of the criminal case and evidently that has weighed with the authorities
for awarding compulsory retirement.
X Non-consideration of relevant materials vitiates decision
14.The contention on behalf of the State Government is that compulsory
retirement is not a punishment and it is a matter by which the establishment could
dispense with dead wood and compulsory retirement ought not to be understood as
casting of any aspersion at all. Counsel for the petitioner responds to this argument by
pointing out that compulsory retirement itself is indeed a form of punishment if it is
inflicted on the basis of pendency of a criminal cas. The Court is bound to examine
whether the relevant materials have been taken into account at the time when the order
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is passed. We have already pointed out to the fact that the only relevant consideration
at the time taken up as a subject of compulsory retirement is the pendency of the
criminal case and the acquittal by the criminal court and the ultimate exoneration of the
petitioner in the departmental proceedings are not even in the file. The Hon'ble
Supreme Court said in State of Gujrat versus Suryakant Chunilal Shah (1999) SCC
529 that pendency of criminal cases was not sufficient to doubt a person's integrity. It
depended on the nature of criminal case. It interfered with the decision of compulsory
retirement, holding, however, that there was a collateral purpose of removing the
employee. This Court has cautioned in Amrik Singh versus State of Haryana 1995(4)
RSJ that there is an onerous obligation placed on the reporting or other authority, who
makes adverse remarks regarding integrity of an officer and he has to be extra-
cautious, careful, while making adverse entry pertaining to integrity. It is indeed doubtful
whether the Superintendent of Police had even properly noticed the adverse entries,
since his note to the IG of Police refers to them as for the period from 01-04-2004 to 03-
12-2004, when actually it is for the period from 01-04-2001 to 03-12-2001. Even if this
was to be taken merely clerical error, it would still be seen that the ultimate acquittal of
the petitioner in the criminal case had not been communicated to his Superior Officer at
all. Even the fact that the departmental enquiry exonerated him does not find mention in
the note sent to the Inspector General of Police. Having regard to the fact that the only
incident of pendency of criminal case had formed the solitary basis both for the adverse
entry as well as for the order affecting compulsory retirement, we find that non
consideration of acquittal in the criminal case and the exoneration of the charges in the
departmental procedings vitiates the ultimate decision.
15.It has been held by a decision of this Court in Jaspal Singh versus State of
Haryana reported in 1995(4) SCT 302 that where neither service record has been
considered nor properly re-evaluated before a decision for premature retirement is taken
the decision cannot be legally sustainable. In that case, this Court was dealing with the
case of the petitioner who had earned many good reports, appreciations and promotions
for the posts of ASI & SI but he had been retired only on the basis of one stale entry of
doubtful integrity. The Court reasoned that there had been no proper evaluation of the
entire service record and quashed the proceedings. The learned counsel for the
petitioner also refers to the Division Bench of this Court in Randhir Singh, ASI versus
State of Haryana rendered in CWP 867 of 2007 dated 29-03-1987, the decision of civil
court setting aside punishment which was the basis of adverse entry in ACR constitutes
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a fresh cause of action and a failure to consider the same in the second representation
vitiates the decision to retain the adverse entry. In the present case also, we are
dealing with the situation of the case of the petitioner who after joining the service on
28-04-1978 had no adverse entries at all against him except for one incident of censure
between the period from 01-04-1991 to 03-12-1991 and the adverse entry between the
period from 01-04-2001 to 03-11-2001 on the basis of the pendency of criminal
complaint. It is likely that the acquittal in the criminal case and the exoneration of
charges in the departmental proceedings would have had a different bearing as relevant
materials at the time the final decision had been taken. The same having not been
placed before the competent authority when the impugned orders were passed, we
agree with the contention of the counsel for the petitioner that the impunged orders are
liable to be interfered with and the adverse entry in the ACR with the order of
compulsory retirement due to pendency of criminal case on the solitary basis have to go
.
XI Final Disposition
16.In the circumstances, the writ petitioner is bound to succeed and adverse entries in the ACR are directed to be expunged. The order of compulsory retirement impugned in the writ petition is also set aside. The petitioner is entitled to be reinstated in service with all consequential benefits.
sd/- sd/-
{Mehtab S Gill} {K Kannan}
Judge Judge
24-12-2008
Office Note: The original files relating to compulsory
retirement.