Punjab-Haryana High Court
Jaswant Singh vs State Of Punjab And Others on 29 January, 2014
CWP No.4914 of 1993 -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
CWP No.4914 of 1993
CWP No.11912 of 1993 and
CWP No.16578 of 1994
Date of decision: January 29, 2014.
Jaswant Singh
... Petitioner
v.
State of Punjab and others
... Respondents
CORAM: HON'BLE MR. JUSTICE DR. BHARAT BHUSHAN PARSOON
Argued by: Shri Kanwaljit Singh, Senior Advocate with
Shri Ajaivir Singh, Advocate, for the petitioner.
Shri Yatinder Sharma, Additional Advocate General,
Punjab for the respondents.
Dr. Bharat Bhushan Parsoon, J.
All these petitions have been taken up together as they involve similar questions of facts and law. Facts have been taken from CWP No.4914 of 1993.
The petitioner, a police official working with the respondents, was dismissed from service on 27.10.1979 on the charge that he had not removed the objections in a case under Section 411 IPC registered on 4.7.1977 with police station GRP, Ferozepur, which was being investigated by him. It was felt by the respondents that this omission on the part of the petitioner was for giving benefit to the accused in the case.
This order was challenged by the petitioner before his superior authorities. Vide his order dated 13.10.1980, Inspector Kadyan Vinod Kumar 2014.02.07 10:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.4914 of 1993 -: 2 :- General of Police, Punjab accepted the revision petition of the petitioner holding that the Additional Superintendent of Police who had passed the impugned order of 27.10.1979 against the petitioner was not competent to do so. Consequently, directions had been given to issue fresh show cause notice and to pass necessary orders. As a consequence of acceptance of his revision petition, the petitioner was reinstated in service. It was on 4.12.1980.
Complying with these orders of 13.10.1980, fresh show cause notice was issued to the petitioner. The notice was not served. Nonetheless, on 7.4.1981 i.e., during pendency of the said notice, the petitioner was dismissed under Article 311(2) of the Constitution of India. This order was challenged by the petitioner. Hon'ble Supreme Court of India had set aside this order, however, giving liberty to continue with the proceedings against the petitioner. As a consequence though the petitioner was reinstated on 10.5.1991, he was called upon to furnish reply to notice already served upon him before dismissal. He reported for duty on 17.5.1991 but was again dismissed from service on the charges which had earlier been framed against him.
In the second round of challenge of his dismissal order of 26.12.1991, vide order of 19.10.1992, the appellate authority partly accepted his petition and modified the order of dismissal to forfeiture of five years of approved service with permanent effect. It was also ordered that the petitioner be taken back in service from the date of dismissal and period of his absence was to be treated as a period of non-duty for which he was not entitled to any salary or arrears. On 8.11.1992, the petitioner had reported for duty.
So far as the matter regarding salary with effect from 7.4.1981 to 30.7.1991 (Rs.1,40,000/-) was concerned, Rs.12,000/-
Kadyan Vinod Kumar 2014.02.07 10:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.4914 of 1993 -: 3 :-were to be deposited in GPF account whereas Rs.1,28,000/- were to be paid to the petitioner. Rs.1,28,000/- were shown to have been paid to the petitioner in terms of Annexure R-10 (in CWP No.16578 of 1994) whereas salary for September and October, 1991, as per Annexure R-11 in (CWP No.16578 of 1994) was drawn and had been shown to have been deposited in the treasury.
The third round of trouble started for the petitioner when he was again placed under suspension in connection with alleged acts of omissions and commissions in conducting of investigation in FIR No.110 dated 29.7.1991 registered at Police Station Division No.4, Jalandhar. The payment of petitioner's salary for the period of September to December, 1991 was stayed vide Annexure R-14 (in CWP No.16578 of 1994).
If we go a little back and even beyond 27.10.1979, it transpires that service of the petitioner had not been smooth and comfortable. When the petitioner was posted as In-charge, GRP Railway Station Budhlada, a train accident had taken place on 21.4.1972 resulting in death of two persons. The petitioner had conducted proceedings under Section 174 Cr.P.C. He had handed over the dead bodies to their heirs without getting post mortem conducted. Case had also not been registered till 28.4.1972. It was much later that FIR was registered against the accused at GRP Police Station, Bathinda.
For alleged act of negligence, criminal case was registered against the petitioner in police station GRP Bathinda. He was placed under suspension on 12.5.1972. Inquiry was conducted under Rule 16.38 of the Punjab Police Rules (PPR). As per inquiry report (Annexure R-4), the petitioner was indicted for having not registered the case against the culprits and also for destroying the Kadyan Vinod Kumar 2014.02.07 10:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.4914 of 1993 -: 4 :- most important material evidence.
However, the petitioner was reinstated with effect from 17.1.1973 without prejudice to pendency of the case against him and without his entitlement of full salary for the period he remained under suspension.
Though, initially the petitioner was suspended on 5.11.1978 on account of his alleged grave misconduct followed by his dismissal from service on 27.10.1979 but due to intervention of the courts, the said order of dismissal from service was converted into reduction in rank on 13.10.1980.
In CWP No.4914 of 1993, the following relief has been sought by the petitioner:-
"Writ of certiorari/mandamus directing the respondents to grant balance benefit amounting to Rs.28,500/- as per the judgment of Hon'ble Supreme Court as also the full allowance of the earlier suspension period as also quashing of order dated 20.10.1992 whereby five years approved service of the petitioner has been forfeited."
In CWP No.16578 of 1994, the following relief was sought:-
"Issuance of writ of mandamus directing the respondents to release the salary for certain period of suspension and also to declare the forfeiture of approved service of 21 years in all during his service tenure and return of personal belongings alleged to be in the custody of the respondents."
In CWP No.11912 of 1993, relief sought is to the following effect:-
"Writ in the nature of certiorari quashing order Annexure P-4 dated 20.9.1993 by which the petitioner has been retired prematurely"Kadyan Vinod Kumar 2014.02.07 10:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.4914 of 1993 -: 5 :-
Tough contest has been made by the respondents asserting validity and legality of the impugned action. It is claimed that reply to the show cause notice of 4.4.1981 against the petitioner had been sought in compliance with the orders of 27.11.1990 of the Hon'ble Supreme Court of India. It is also canvassed that payment of Rs.1,40,000/- as arrears of the petitioner had duly been made. Without disputing the facts, it is claimed that the petitioner had been absenting from duty. It is further pleaded that the impugned orders had been passed after providing opportunity of being heard to the petitioner. Prayer for dismissal of the petitions had been made.
Hearing has been provided to counsel for the parties while perusing the paper book.
Claim of the petitioner all through is that he was given a raw deal whereas he was expecting better treatment from his employer. Making insinuations against his senior officers, it is claimed by the petitioner that one sided engine of oppression had been let loose by the authorities against him. It is contended by counsel for the petitioner that he has suffered in his service career, in reputation as also in his position, in addition to being deprived of his salary and other allowances.
Per contra, contention of counsel for the respondents is that action against the petitioner had always been backed by principles of natural justice and there was nothing with the petitioner to contest on the grounds of validity and legality of the actions of the respondents impugned by the petitioner.
Going through the paper book, it is revealed that inquiry into the entire matter was conducted by an officer of the Additional Kadyan Vinod Kumar 2014.02.07 10:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.4914 of 1993 -: 6 :- DGP rank. It was as per orders dated 15.4.1992 of the then Chief Minister of the State of Punjab. In no uncertain terms, this inquiry officer had insinuated conduct of Shri Rajinder Singh, the then AIG, who had passed orders against the petitioner. Conclusion of the said inquiry officer, for ready reference, is appended as below:-
"I have reached the conclusion that Ex. Head Constable- defendant is being victimized and harassed since long. I recommend to the DIG Railway that as per the judgment of Hon'ble Supreme Court the due relief be given to the person immediately. I further recommend that AIG Rajinder Singh be immediately transferred so that similar harassment is not faced by any other employee."
Before further discussion is made on this score, it would be appropriate to appreciate the contents as also sum and substance of the case of the petitioner. Before this inquiry officer, the petitioner had made certain allegations against the AIG of Police viz. Shri Rajinder Singh, on affidavit. These are reproduced as below:-
"1. Illegal forfeiture of 8 years of his service.
2. Dismissal of the petitioner by A.I.G. Rajinder Singh for the third time on 26.12.1991 on the same charge because the petitioner had refused to give commission out of his payment of Rs.1,40,000/-.
3. Illegal receipt of commission on account of purchase of sticks from a firm of Ambala (Haryana).
4. Illegal withholding of salary of the petitioner from 12.9.1991 to 26.12.1991 and non-return of his luggage lying in the custody of G.R.P. Patiala since 1981."
Findings on all the allegations have been returned by this inquiry officer against the respondents and in favour of the petitioner. It is intriguing to note that this inquiry report (Annexure P-8) forms part of paper book of CWP No.16578 of 1994. There is specific mention of this report in the petition as well. Para 4 of this petition distinctly mentions about this inquiry report. In the written statement furnished by the respondents, the entire issue has been bye-passed.
Kadyan Vinod Kumar 2014.02.07 10:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.4914 of 1993 -: 7 :-For ready reference averments contained in para 4 of the petition are reproduced as below:-
"That faced with such a situation the petitioner represented before the Hon'ble Chief Minister of Punjab for an impartial inquiry into the matter and filed an affidavit also to this effect. The said enquiry was marked to Sh. Surjeet Singh I.P.S. Additional Director General of Police (Vigilance) Punjab who vide his report dated 5.7.1992 Annexure P-8 has clearly recorded that the petitioner was treated in a most shabby manner and illegal manner. In the said enquiry it has been clearly held that the forfeiture of service of the petitioner without his knowledge, without associating him, without communicating any orders to him is absolute illegal and unlawful. Vide the said enquiry report the learned Additional Director General of Police has clearly stated the circumstances in which the employee has been victimised and discriminated against as even the full salary benefits were not paid to him and the illegalities in the respondent's department to such an extent that the petitioner caught hold of an accused in a murder case registered in P.S. Panchkula District Ambala in FIR No.83/93 under Section 302, 371 IPC. The petitioner was awarded a commendation certificate. Most of the articles including gold and cash were recorded by the petitioner but have been eaten away and not shown in the recovery memo by the respondent No.2 and rather he retired the petitioner prematurely. Such order of premature retirement is also under challenge and the writ petition stands admitted in this Hon'ble High Court."
Reply to this para in written statement furnished by the respondents for ready reference is reproduced as under:-
"It is correct to the extent that the petitioner was retired from service prematurely on account of his bad service record and in the public interest under rule 3(1)(a) read with rule 3(b) of the Punjab Civil Service (Premature Retirement) Rules, 1975. It is also correct that a writ petition No.11912 of 1993 filed by the petitioner against the order of premature retirement is pending in this Hon'ble High Court. Rest of the para is denied for want of knowledge."Kadyan Vinod Kumar 2014.02.07 10:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.4914 of 1993 -: 8 :-
Conjoint reading of the pleadings of the parties with specific reference to averments in para 4 of the petition, makes it evident that there is no denial and rather there is general escapist attitude manifested by the respondents.
Notwithstanding whatsoever has already been written, it is trite that an employee has no vested right to continue in service after 55 years of age, which is merely an extension and it is the sole prerogative of the employer to grant or not to grant extension to an employee after satisfying itself with the work and conduct of the employee based on his track record. Reference may be made to Daya Nand v. State of Haryana, 1995(1) CLJ (Service) 284 (FB). The employer may remove the dead wood and in public interest pay good bye to the inefficient employees. There is no dispute that premature retirement is not a punitive action. At the same time, it is also true that such jurisdiction should be exercised in a judicious manner and not capriciously. There should be sufficient material to substantiate the action of premature retirement and such an action should not be arbitrary and mala-fide based on no material evidence. Reference may be made to Rajesh Gupta v. State of J&K (SC), 2013(2) SCT 185. Facts of the case need not be repeated as the same have been discussed in detail in earlier part of the judgment. In the given facts and circumstances of the case, the order of premature retirement does not call for any interference as it is based on material available on service record of the petitioner.
However, at the same time, this Court cannot lose sight of the fact that the petitioner has been facing multiplicity of litigation as his fight against the department started in the year 1972 which is still going on. It appears that the petitioner has also faced harassment Kadyan Vinod Kumar 2014.02.07 10:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.4914 of 1993 -: 9 :- at the hands of the respondent-authorities inasmuch as the impugned order dated 7.4.1981 (Anexure P-6) dismissing the petitioner from service was founded on vague, evasive and imaginary grounds, having no evidence, much less substantial, to support such an action. It further appears from pleadings of the petitioner that he had been visited with dual punishment inasmuch as there was no response from the respondents as regards his belongings. Furthermore, the petitioner has also alleged that besides forfeiture of his approved service, he has also been deprived of wages/salary on a few occasions which is contrary to the doctrine of double jeopardy and is in violation of his constitutional right enshrined under Article 20(3) of the Constitution of India.
Besides this, the petitioner has affirmed on oath that a sum of Rs.28,500/- has been withheld by Shri Rajinder Singh, the then AIG of Police as illegal gratification though the stand of the respondents is that said amount has been disbursed to him.
Taking a wholesome view, it is a fact that the controversy has turned out to be extremely juxtaposed with facts. There is dispute of facts and circumstances and to arrive at a definite conclusion as regards the surviving claims of the petitioner, the entire service record of the petitioner needs to be gone through and evaluated. At the same time, this Court cannot become oblivious of the fact either rthat the petitioner is in the corridors of various Courts including quasi-judicial authorities since the year 1979.
As a sequel, direction is issued to the Director General of Police, Punjab to appoint an Officer not below the rank of Inspector General of Police who shall go through the entire service record of the petitioner thoroughly which would include the claims and counter claims as also foundation thereof, keeping in view the Kadyan Vinod Kumar 2014.02.07 10:12 I attest to the accuracy and integrity of this document Chandigarh CWP No.4914 of 1993 -: 10 :- facts and circumstances enumerated above, within a period of three months and decide the claim of the petitioner in a fair and dispassionate manner and whatever is found payable to the petitioner, the same shall be disbursed to him within three months thereafter. The petitioner shall be associated in such an enquiry.
The petitioner is required to approach the Director General of Police, Punjab within a period of one month from the date of receipt of a certified copy of this order.
These petitions are disposed of in the above terms.
[Dr. Bharat Bhushan Parsoon] January 29, 2014. Judge kadyan
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Kadyan Vinod Kumar 2014.02.07 10:12 I attest to the accuracy and integrity of this document Chandigarh