Punjab-Haryana High Court
Raghbir Singh (Head Constable) vs State Of Haryana And Others on 13 August, 2010
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITION NO.13181 OF 2010 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: AUGUST 13, 2010
Raghbir Singh (Head Constable)
.....Petitioner
VERSUS
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. Vikram Singh, Advocate,
for the petitioner.
****
RANJIT SINGH, J.
A police Head Constable has filed this writ petition to challenge the order of his compulsory retirement as he has been retired on completion of 55 years of age.
Having been enrolled as Constable, the petitioner claims to have served the department with full devotion. He was promoted to the post of Head Constable. A case was registered against him under the provisions of Prevention of Corruption Act on 4.6.2007. While posted at Police Station Nilokheri, the petitioner had allegedly demanded illegal gratification of one sealing fan and ` 1000/- for making a verification report in regard to an application of arms CIVIL WRIT PETITION NO.13181 OF 2010 :{ 2 }:
licence of one Karamjit Singh. On complaint being made, the petitioner was caught red handed while accepting illegal gratification. He was placed under suspension w.e.f. 4.6.2007 and a regular departmental enquiry was ordered against him. The petitioner was found guilty in the departmental enquiry and, thus, was served a show cause notice for imposing a penalty of dismissal from service. After considering his reply, the petitioner was dismissed from service on 30.5.2008. Simultaneously, the petitioner was also being prosecuted for a criminal offence registered against him under the Prevention of Corruption Act. At the time of dismissal, the criminal proceedings were in progress against the petitioner.
The petitioner had filed an appeal against the order of dismissal, which was rejected on 23.4.2009 by Inspector General of Police, Rohtak Range. On 1.12.2009, the petitioner was acquitted of the criminal charge. The petitioner thereupon filed a revision before Director General of Police, Haryana primarily on the ground that the petitioner had been exonerated by the Criminal Court of the charges levelled against him and so he pleaded for his reinstatement in service. The Director General of Police, Haryana, partly accepted the prayer while having regard to his length of service of 36 years and commuted the punishment of dismissal from service to that of stoppage of four annual increments with permanent effect by taking a lenient view. The period spent out of service was directed to be treated as extra ordinary leave without pay.
The annual confidential report had also been recorded against the petitioner and keeping in view this aspect, the petitioner was served a show cause notice on 8.6.2010 for retiring him from CIVIL WRIT PETITION NO.13181 OF 2010 :{ 3 }:
service on completion of 55 years of age. The petitioner has accordingly challenged this order on the ground that he can not be retired in this manner without assigning any reason.
The counsel for the petitioner would urge that except for this blemish in regard to allegation of accepting bribe, the entire service record of the petitioner was clean and this alone, according to the counsel, was not enough to retire him on completion of 55 years of age.
The submission that the impugned order would be arbitrary on the ground that the petitioner has been acquitted of the criminal offence but still the same is being viewed to retire him, apparently is not well founded. An order, retiring the petitioner on completion of 55 years of age is not passed as a punishment. It implies no stigma nor is a suggestion of misbehaviour. It is not a punitive order. A competent authority has a discretion to retire an employee after he attains a particular age or completes a particular period of qualifying service. Hon'ble Supreme Court in Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, AIR 1992 Supreme Court 1020, has listed the principles that would emerge from the various judgments and these are 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 CIVIL WRIT PETITION NO.13181 OF 2010 :{ 4 }:
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) malafide 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 during the later years. The record to be 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 adverse remarks, such remarks lose their sting, moreso, 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 un-communicated adverse remarks were also taken into consideration. That circumstances by itself cannot be a basis for interference."
CIVIL WRIT PETITION NO.13181 OF 2010 :{ 5 }:
Hon'ble Supreme Court has also observed that
interference is permissible only on the grounds mentioned in (iii) above. Thus, order can be interfered when it is passed with malafide or it is based on no evidence or it is found to be perverse in the sense that no reasonable person would form the requisite opinion on given material. Nature of function while passing this order was held not to be quasi-judicial because the action has to be taken on subjective satisfaction of the Government. It is, thus, held that there is no room for entertaining the facet of audi alteram partem of principles of natural justice in such a case.
The nature of this power to compulsory retire a person was again considered in Bishwanath Prasad Singh Vs. State of Bihar and others, (2001) 2 Supreme court Cases 305. A distinction between compulsory retirement awarded as punishment and under fundamental rule is pointed out as under:-
"Compulsory retirement in service jurisprudence has two meanings. Under the various disciplinary rules, compulsory retirement is one of the penalties inflicted on a delinquent government servant consequent upon a finding of guilt recorded in disciplinary proceedings. Such penalty involves stigma and cannot be inflicted except by following procedure prescribed by the relevant rules or consistently with the principles of natural justice if the field for inflicting such penalty be not occupied by any rules. Such compulsory retirement in the case of a government servant must also withstand the scrutiny of Article 311 of the Constitution. Then there are service rules, such as CIVIL WRIT PETITION NO.13181 OF 2010 :{ 6 }:
Fundamental Rule 56(j) of the Fundamental Rules, which 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 completing a certain number of years of service on formation of an opinion that in public interest it was necessary to compulsorily retire him. In that case, 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 the pension actually earned and other retiral benefits. So long as the opinion forming basis of the order for compulsory retirement in public interest is formed bona fide, the opinion cannot be ordinarily interfered with by a judicial forum. Such an order may be subjected to judicial review on very limited grounds such as the order being mala fide, based on no material or on collateral grounds or having been passed by an authority not competent to do so. The object of such compulsory retirement is to weed out the worthless who have lost their utility for the administration."
The petitioner was accused of a serious allegation of accepting bribe, which involves moral turpitude. An enquiry was held against him, where he was afforded all opportunities to defend himself. The enquiry found him guilty of the misconduct alleged against him. Upon his acquittal of a criminal charge, the authorities CIVIL WRIT PETITION NO.13181 OF 2010 :{ 7 }:
were considerate enough to consider his plea on that count as well as on the ground of his 36 years of service and commuted the punishment of dismissal to stoppage of increments. This would show a fair dealing on the part of the respondent-authorities and the fact that they had judged the issues without any prejudice or bias. The question now to be seen was whether the petitioner was a person fit to be retained in service on completion of 55 years of age. The decision of the authorities that he would not be fit to be retained in the background would not suffer from any malafides or arbitrariness and is a decision which any reasonable person could form from the material that is available. This order can not be termed as perverse in any manner to call for any interference.
The solitary submission made by the counsel for the petitioner that except for this infirmity, the petitioner has a clean record to show would not be a reason enough to say that he has not been fairly treated. Allegation of bribe, which was enquired into and established, would in itself be a serious enough to form a view that such a person is not fit to be retained in service but still, the respondents were considerate enough to recall the order of dismissal and take the petitioner back into service, having regard to his long service. On a question of retaining him in service, his whole record was to be taken into consideration. This order is passed on the basis of subjective satisfaction of the competent authority. There is no allegation of malafide. It is not by way of punishment. It is not due to any misbehaviour. A view has been formed that the petitioner is not fit to be retained and this incident may have been taken into consideration and could rightly be so considered. The impugned CIVIL WRIT PETITION NO.13181 OF 2010 :{ 8 }:
order, thus, does not suffer from any infirmity to call for interference.
There is no merit in the writ petition and the same is accordingly dismissed.
August 13, 2010 ( RANJIT SINGH ) khurmi JUDGE