Punjab-Haryana High Court
Rohtash Singh vs State Of Haryana And Others on 8 October, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.5792 of 2012
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.5792 of 2012
Date of Decision: 08.10.2013
Rohtash Singh ..... Petitioner
Versus
State of Haryana and others ..... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. S.K. Yadav, Advocate,
for the petitioner.
Mr. Sunil Nehra, Sr. DAG, Haryana.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
The petitioner has been retired compulsorily at the age of 55 years from Police service under Rule 9.18 (2) of the Punjab Police Rules, 1934 read with Rule 5.32-A (C) of the Punjab Civil Services Rules, Volume-II read with Rule 3.26(d) of the Punjab Civil Services Rule, Volume-I Part-I as applicable to the State of Haryana. Notice of premature retirement was served on 26.01.2012. The petitioner was to complete 55 years of age on 05.05.2012. The notice was for a period of three months at the end of which the petitioner would automatically stand compulsorily retired from service.
Aggrieved by the notice, the petitioner preferred an appeal dated 11.02.2012 (P-2) to the State Government. It was pending withoutMittal decision.
Manju2013.10.10 16:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.5792 of 2012 -2- The petitioner instead of awaiting final orders on appeal approached this Court invoking its writ jurisdiction.
In response to notice of motion, the State has contested the case and filed its return. The Note below Rule 5.32-A (C) is cited in defence of action taken. The Note provides that the appointing authority retains an absolute right to retire a Government employee in public interest after he has attained the prescribed age by considering his case for retention till the age of retirement on superannuation. No show cause notice, is, therefore, required to be served if action is taken under this Clause. The legal requirement is to serve upon an employee a notice of three months of impending reaching the age milestone of completion of 55 years and to do so in public interest if his continuance is not found of continued use beyond 55 years and his confidential rolls and service record do not speak well for him. The rule of compulsory retirement is an exception to the rule of retirement on reaching the age of superannuation. It is now embedded in the law of compulsory or premature retirement that it is not inflicted by way of punishment unless compulsory retirement itself is ordered as a major punishment which is not the present case. The difference between the two lies on the right to draw pension. In the present case, compulsory retirement has not been inflicted by way of punishment.
The State supports its action on an examination of the service record of the petitioner in the light of instructions of Haryana Government which require 75% good ACRs and without blemish on his integrity. These executive instructions are dated 21.05.64, 27.12.82, 06.07.87, 22.03.90 and 11.04.2005 read with memorandum dated 14.03.2006 issued by the Director Mittal Manju 2013.10.10 16:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.5792 of 2012 -3- General of Police, Haryana, for the police service which require that a Government employee 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 and opinion is formed on whether a member of the force is fit to be retained in service beyond the age of 55 years.
In Baldev Raj Chadha vs. Union of India (1980) 4 SCC 321 it was laid down that the basic purpose of the rule of compulsory retirement is to weed out the worthless, the deadwood and inefficient public servants by laying more emphasis on recent reports in the Annual Confidential Reports than of the remote past. Similar view has been re-affirmed by the Supreme Court in Badrinath vs. Government of Tamil Nadu, (2000) 8 SCC 395 and Shiv Dayal Gupta vs. State of Rajasthan and another, 2005 (13) SCC 581. The material examined by the Government in issuing notice of retirement included award of major punishment of stoppage of five future annual increments with permanent effect inflicted upon the petitioner on 07.11.1994 for having trespassed into the house of one Shivram resident of Mindkola in an inebriated state with bad intentions. The petitioner was awarded punishment of Censure in 1996 for carelessness and slackness in performing Government duty. He was inflicted another Censure in 1996 for negligence in the performance of duties. Besides, he was awarded punishment of stoppage of two future annual increments with temporary effect in the year 2005 for picking up a quarrel in public place after consuming of liquor and bringing a bad name to the police force. Still further, adverse ACRs were recorded for the period 01.04.2008 to Mittal Manju 2013.10.10 16:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.5792 of 2012 -4- 11.06.2008 for the reason that the petitioner was not found on Naka duty as ordered by his superiors in an occurrence of looting of an amount of Rs.5,50,000/- by miscreants in the jurisdiction of Police Station, Suraj Kund where he was posted.
Heard the learned counsel for the parties.
Learned counsel for the petitioner submits that major punishment was inflicted in 1994 which is in the remote past; the award of Censures is minor punishment; the stoppage of two future increments with temporary effect imposed in 2005 is minor in nature and adverse ACRs for the period 01.04.2008 to 11.06.2008 was recorded during a short period not consistent with the total period of assessment, i.e., for the period 01.04.2008 to 31.03.2009. The last two ACRs recorded prior to passing of the impugned orders are good and that is a material fact that militates against compulsory retirement. It is also the contention of the petitioner that no opportunity of hearing was afforded to him when the notice of compulsory retirement was issued nor thereafter. Besides, the appeal against the notice remains pending consideration. The petitioner relies on a decision of this Court in CWP No.1118 of 2001 titled Sat Narain vs. State of Haryana and others relating to the Police Department decided on 20.02.2009. This was a case where past adverse record was found to have lost its sting on promotion to the higher post. The material used against Sat Narain was based on an inquiry and reversion order passed against him which was subject matter of civil suit which was decreed in his favour and affirmed up to this Court in RSA No.3206 of 2001 and the substratum of the adverse material lay buried under the weight of Court orders. Therefore, this decision is of no help to Mittal Manju 2013.10.10 16:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.5792 of 2012 -5- the petitioner and is distinguishable on facts. The petitioner then relies on a Division Bench decision of this Court in State of Haryana etc. vs. Shri Davender Singh, SI, 2009(3) SCT 315: 2009(4) RSJ 511. This is also a case of promotion by way of selection based on merit, efficiency and honesty tempered with seniority in terms of Rule 13.1 of the PPR, 1934 as applicable to the State of Haryana. This Court held that such promotions takes away the sting of earlier adverse entry. Since it was found that the employee had earned good and very good entries preceding the date of consideration then there was no justification to compulsorily retire him on the basis of a 20 year old stale adverse entry of doubtful integrity. Reliance next has been placed on the Division Bench decision of this Court in State of Haryana and others vs. Mohinder Singh, 2012(1) SLR 578: 2012(3) SCT 144: 2012 (3) RSJ 431. In this case, there was no adverse entry or report reflecting on the integrity in the entire service record. This Court held that major penalty and minor penalties lose their efficacy on promotion by selection to higher posts. This was a case where a police official had all good entries in the preceding 10 years of the notice of retirement and for this reason, the order of compulsory retirement was set aside. This case is also of no help to the petitioner.
In support of the case of the respondents, the learned State counsel to the contrary relies on State of U.P. vs. Vijay Kumar Jain, 2002 (3) SCC 641: AIR 2002 SC 1345. The Supreme Court held that old and stale adverse entries in confidential rolls can be taken into consideration and the State Government is competent to retire a Government servant on completion of 50 years of age or qualifying service when reasons justify. Mittal Manju 2013.10.10 16:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.5792 of 2012 -6- The Government has the absolute right to exercise this power to weed out a Government servant in public interest if he has outlived his utility in service. The employee cannot challenge the same except on the grounds of arbitrariness and mala fide exercise of power. The entire service record is to be seen with emphasis on later entries in the character rolls of a Government servant. The order cannot be set aside merely because a 10 years old entry regarding integrity was taken into consideration. Reliance is also placed on State of Punjab vs. Gurdas Singh etc., 1998 (4) SCC 92: AIR 1998 SC 1661. The Supreme Court in this case opined that an adverse entry prior to earning of promotion on crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during the whole tenure of service to determine whether it is in public interest to retain him or not. Even un- communicated adverse entries can serve the purpose.
In Union of India vs. M.E. Reddy, 1980(1) SCR 736, the Supreme Court examined previous dicta to hold that an order of compulsory retirement is not passed by way of punishment. The object of the rule is to maintain a higher standards of efficiency and initiative in the State service. It is not necessary that a good officer may continue to be efficient for all times to come and an order of compulsory retirement passed at the fag end of the career would not caste any aspersion nor entail any civil consequences. The right to draw salary for the remaining period is not an absolute right which can be claimed by an officer for reason of long past service. The Supreme Court observed that the general impression which is carried by most of the employees that that compulsory retirement under Mittal Manju 2013.10.10 16:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.5792 of 2012 -7- these conditions involves some sort of stigma must be completely removed because Rule 16(3) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 a central rule are in pari materia with the present rules does nothing of the kind. However, a departure came and a different approach was adopted by the Supreme Court in Brij Mohan Singh Chopra vs. State of Punjab, 1987(2) SCR 583 when the Court held that it would be unjust and contrary to the principles of natural justice to retire prematurely a Government employee on the basis of adverse entries which were either not communicated to him or if communicated, representation made against those entries were not considered or disposed of. Brij Mohan Singh Chopra's case was overruled in Baikuntha Nath Das and another vs. Chief District Medical Officer, Baripada and another, (1992) 2 SCC 299. The following principles of compulsory retirement not inflicted by way of punishment were culled out from past precedents and the legal position was summarized 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 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 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 Mittal Manju 2013.10.10 16:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.5792 of 2012 -8- 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.
Interference is permissible only on the grounds mentioned in (iii) above." Therefore, it follows that the argument raised by the petitioner with respect to the right of hearing at the stage of compulsory retirement is untenable. The order implies no stigma nor any misbehaviour although realistically motive behind such order was to weed out unnecessary baggage but not its foundation. Principles of natural justice have no place in the scheme of compulsory retirement when not inflicted by way of punishment. Mr. Nehra further relies on the decision of the Division Bench of this Court in LPA No.1881 of 2011, Raj Singh Dahiya vs. State of Haryana and others decided on 23.01.2012 where this Court applied the test of mala fides and perversity. Where none is found and the order is based on proper application of mind it is legal and valid. There is no sufficient cause for interference by court. Lastly, He also relies on a Single Bench decision of this Court delivered in CWP No.17028 of 2011; Sujan Singh vs. State of Haryana and others rendered on 08.07.2013. This was a matter of compulsory retirement of an Assistant Sub Inspector of Police who was retired at the age of 55 years. This Court held as follows:-
"The respondent-Department has considered the entire service record of the petitioner. The petitioner has been imposed penalties of censure, one of which reflected on his integrity. The other punishment was for Mittal Manju 2013.10.10 16:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.5792 of 2012 -9- inefficiency/negligence. The petitioner has not raised any allegation of malafides or as regards the competency of the authority who has passed the impugned order. The impugned order cannot be termed as perverse as a view has been formed by the Competent Authority on the basis and backdrop of material relating to unsatisfactory service. It is not a case of an order of compulsory retirement having been passed without any material on record. This Court cannot sit in appeal over the judgment of the Competent impugned order of compulsory retirement does not call for any interference."
The learned Single Judge in reaching the conclusion applied the test laid down in National Aviation Company of India Ltd. vs. S.M.K. Khan, AIR 2009 SC 2637 where the Supreme Court observed as follows:-
"When an order of compulsory retirement purports to be one under rule/regulation providing for such premature retirement, the proper approach of the Court would be to consider whether the order is sustainable with reference to the requirements of the relevant rule, rather than examining whether the order could also be construed as a punishment for misconduct."
Mr. Nehra has produced the original record of the petitioner and the same has been examined and debated upon with the able assistance of both the learned counsel. The summary of ACRs of the petitioner for the last 10 years is tabulated below for ready reference:-
"1. 2000-2001 Good
2. 2001-2002 Good
3. 2002-2003 01.04.2002 to 02.11.2002 Adverse Remarks Expunged 03.11.2002 to 31.03.2003 Good
4. 2003-2004 Satisfactory
5. 2004-2005 01.04.2004 to 21.05.2004 Not available, However the period is less then three months.
22.05.2004 to 31.03.2005 No Comments
6. 2005-2006 01.04.2005 to 23.03.2006 ACR cannot be in initiated as the ACR writing authority has already been superannuate hence no comments 24.03.2006 to 31.03.2006 Period is less than three months
7. 2006-2007 01.04.2006 to 10.01.2007 Satisfactory 11.01.2007 to 31.03.2007 Period is less than three months
8. 2007-2008 01.04.2007 to 31.03.2008 Good Mittal Manju 2013.10.10 16:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.5792 of 2012 -10-
9. 2008-2009 01.04.08 to 11.06.2008 Defects, if any:- Awarded Censure for not found on Naka duty as ordered on Occurrence of an event of Looting an amount 5,50,000/- In jurisdiction of PS S.Kund.
12.06.2008 to 18.02.2009 Good 19.02.2009 to 31.03.2009 period is less than three months
10. 2009-2010 01.04.2009 to 14.06.2009 period is less than three months 15.06.2009 to 31.07.2009 Not available, However the period is less than three months.
01.08.2009 to 28.08.2009 period is less than three months 29.08.2009 to 16.12.2009 ACR cannot be in initiated as the ACR writing authority has already been superannuate hence no comments 17.12.2009 to 14.07.2010 Not available 15.07.2010 to 22.07.2010 period is less than three months 23.07.2010 to 21.09.2010 Not available however period is less than three months 22.09.2010 to 01.01.2011 Good 01.01.2011 to 31.03.2011 Good 01.04.2011 to 31.05.2011 period is less than three months"
A cumulative reading of the Annual Confidential Reports and the punishments imposed in the past found in the service record cannot be held to be irrelevant to the consideration. They do not inspire retention when seen juxtaposed with the entire service record of service. The last two ACRs may be good but the overall record does not speak well for the petitioner. I, therefore, find no sufficient reason to interfere with the impugned orders of compulsory retirement on subjective satisfaction based on objective assessment of the retaining authority who remains the best judge of the continued needs of the police service where perhaps more stringent standards can be applied in public interest. Much less do I find that they suffer from any perversity, irrationality or arbitrariness or think that record taken into consideration is neither consistent nor germane to action taken Mittal Manju 2013.10.10 16:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.5792 of 2012 -11- and would, in the result, dismiss the writ petition but with no order as to costs.
(RAJIV NARAIN RAINA) JUDGE 08.10.2013 manju Mittal Manju 2013.10.10 16:12 I attest to the accuracy and integrity of this document Chandigarh