Janki Parshad vs State of Haryana and Others

Tejinder Singh Dhindsa, J.—Learned counsel for the parties have been heard at length and pleadings on record have been perused. The petitioner, who was serving as Sub Inspector with Haryana Police, has in terms of filing the instant writ petition questioned the action of the respondent-authorities in compulsorily retiring him vide order dated 30.3.2012, Annexure P2, holding him to be unfit for being retained in service beyond the age of 55 years.

Brief facts of the case are that the petitioner was appointed as a Constable on 26.2.1979. Based on the service record, the petitioner earned promotions as Head Constable on 18.9.1995, as Assistant Sub Inspector of Police on 9.4.2003 and as Sub Inspector on 29.11.2008. In pursuance to a criminal prosecution, the petitioner was convicted for offences under Sections 323, 330, 506 read with Section 34 of the Indian Penal Code in terms of order dated 10.3.2011 passed by the Court of Judicial Magistrate 1st Class, Gurgaon. The impugned order dated 30.3.2012 issued by the Commissioner of Police, Gurgaon at Annexure P2 was passed whereby in terms of invoking the provisions contained in Rule 3.26(d) of the Punjab Civil Services Rules, Vol. 1, Part-I and Rule 9.18, Clause (1) of the Punjab Police Rules as applicable to the State of Haryana, the petitioner was served upon a notice of three months holding his services to be not required beyond the age of 55 years in public interest. The petitioner submitted a representation against the order dated 30.3.2012 but the same was rejected in terms of memo dated 18.6.2012 at Annexure P5.

The precise case set up on behalf of the petitioner is that the impugned order of compulsory retirement is without any basis inasmuch as the petitioner has an unblemished service record and no adverse report has ever been conveyed to him. Reliance has also been placed upon the instructions dated 19.11.1991, Annexure P6, issued by the State Government on the subject of pre-mature/compulsory retirement on attaining the age of 50/55 years wherein it was provided that it would be open to exercise the power to compulsorily retire an employee only qua those who do not possess 70% or more good reports in the last ten years. It has also been argued on behalf of the petitioner that prior to taking a decision to compulsorily retire the petitioner and issuance of order dated 30.3.2012, Annexure P2, no notice had been served upon the petitioner and as such, the respondent-authorities have acted in violation of the principles of fair play and equity.

During the pendency of the present writ petition, C.M. No. 2839 of 2013 was filed in terms of which a certified copy of judgment dated 20.12.2012 passed by the Additional Sessions Judge, Gurgaon was placed on record whereby the appeal preferred by the petitioner against the order of conviction dated 10.3.2011 passed by the Judicial Magistrate 1st Class, Gurgaon has been accepted and the order of conviction has been set aside.

In the written statement filed on behalf of the respondents, the order of compulsory retirement of the petitioner has been sought to be justified solely on the basis of the order of conviction dated 10.3.2011 passed by the trial Court in criminal proceedings whereby the petitioner had been held to be guilty for offences under Sections 323, 330, 506 read with Section 34 of the Indian Penal Code. It has been pleaded on behalf of the State that on account of conviction, the petitioner has not been found fit for being retained in service beyond the age of 55 years in public interest. Learned State counsel has argued that the order, dated 30.3.2012, compulsorily retiring the petitioner, has been passed in public interest and not by way of punishment and, accordingly, would submit that there was no requirement of granting an opportunity of hearing to the petitioner prior to the passing of the impugned order.

The principles governing compulsory retirement and the extent of judicial scrutiny in such matters came up for consideration before the Hon''ble Supreme Court of Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, and it was held in the following terms:--

The following principles emerge from the above discussion:--

(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 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.

Adverting to the facts of the present case, the categoric averments made in the petition to the extent that the petitioner has enjoyed an unblemished service record and there being no adverse remarks against him have gone unrebutted in the written statement. Even though the impugned order of compulsory retirement does not disclose the basis thereof, but in the written statement, the State has taken the stand that the decision to compulsorily retire the petitioner is based solely on the order of conviction dated 10.3.2011 passed by the Judicial Magistrate 1st Class, Gurgaon. Undoubtedly, the competent authority is vested with the power under the statutory rules to order compulsory retirement, but prior thereto, such competent authority would be obligated to make its own assessment regarding the suitability and desirability of retaining an employee who has attained the age of 55 years. For such purpose, it would be required to consider the entire service record of the employee including the Annual Confidential Reports, the departmental enquiries and punishments imposed if any. Still further, greater emphasis would have to be laid on the record pertaining to the immediate past, prior to taking a decision to continue an employee in service beyond the age of 55 years. Even the instructions dated 19.11.1991 at Annexure P6 issued by the State Government would be in the nature of guiding the competent authority towards exercise of the discretion while taking a decision to compulsorily retire an employee. Such guidelines envisage an employee to possess at least 70% good reports in the last ten years so as to be vested with the right to continue in service and to be not termed as dead-wood.

This Court is of the considered view that in the facts of the present case, the order of compulsory retirement dated 30.3.2012 suffers from the vice of total non-application of mind and would have to be termed as arbitrary. The petitioner admittedly possesses a good record of service. The sole basis of passing of the impugned order is his conviction by the trial Court under Sections 323, 330, 506 read with Section 34 of the Indian Penal Code. Mere conviction cannot result in an automatic forming of an opinion that such employee is not fit to be retained in service. It was incumbent upon the competent authority to have applied its mind to the conduct of the petitioner that had led to his conviction as also on the aspect as to whether the offences for which he stood convicted, involved any moral turpitude. Such application of mind is neither discernible in the impugned order nor in the written statement filed on behalf of the respondents. This Court while examining the validity of the impugned order of compulsory retirement, dated 30.3.2012, based solely upon conviction cannot proceed oblivious of the fact that such order of conviction also stands set aside in terms of the appeal filed by the petitioner having been accepted by the Appellate Court in terms of decision dated 20.12.2012 taken on record at Annexure P11. The very basis of passing of the impugned order has ceased to exist.

For the reasons recorded above, the instant writ petition is allowed. The impugned order of compulsory retirement dated 30.3.2012, Annexure P2, as also the order dated 19.6.2012, Annexure P5, rejecting the representation of the petitioner against the order of compulsory retirement are quashed. The petitioner is also held entitled to the requisite consequential benefits flowing from setting aside of the order of compulsory retirement. Petition allowed.