Prabhu Dayal vs State of Haryana

Augustine George Masih, J.

Petitioner has approached this Court impugning the notice of retirement dated 28.10.2010 (Annexure P-2) and the order of retirement dated 14.03.2011 (Annexure P-4), vide which the Commissioner of Police, Gurgaon has compulsorily retired him at the age of 55 years. It is the contention of the counsel for the petitioner that the petitioner was working in the office of the Inspector General of Police at Chaudhary Devi Lal Centre for Police Research and Training, Bhondsi on the post of Deputy Office Superintendent when FIR No. 5 of 2009, under Sections 465, 467 and 471 IPC, Police Station Bhondsi was registered against Shree Krishan Clerk, Office of the IRB Commandant at Bhondsi. Investigation of the case was held and an untraced report was submitted by the police which was accepted on 01.08.2011 by the Judicial Magistrate 1st Class, Gurgaon. In the meanwhile despite the petitioner having a satisfactory record was issued a notice for retirement by the Director General of Police, Haryana on 28.10.2010 (Annexure P-2). Petitioner was ultimately retired vide order dated 14.03.2011 (Annexure P-4).

The ground which has been taken against the petitioner for retiring him is that the petitioner is also involved in FIR No. 5 of 2009, where one of the accused is Shree Krishan Clerk. Counsel contends that that itself should not be a ground for not granting extension to the petitioner beyond the age of 55 years. He further contends that ASI Jaidev was posted as an Accountant in the office of the Superintendent of Police, Palwal when the FIR was registered, who has been granted extension beyond the age of 55 years. Similarly, Shree Krishan Clerk against whom the FIR was, registered stands promoted to the post of an Assistant by the respondents vide order dated 04.10.2011. Thus, singling out the petitioner, where he is not even an accused, is totally unjustified especially when he was ''never'' posted in the office where the forgery has taken place.

Submission has also been made that after the acceptance of the cancellation report by the Court, a Special Investigation Team (SIT) was constituted by the Director General of Police in which initially the stand of the respondents was that SIT has found the petitioner involved and he was evading the arrest, but ultimately untraced report has been submitted by the SIT in the Court which has been'' accepted by the Judicial Magistrate 1st Class, Gurgaon vide order dated 06.03.2013. He, therefore, contends that the order of premature retirement of the petitioner, being without any basis, deserves to be set-aside.

On the other hand, counsel for the State submits that after the acceptance of the cancellation report, now challan has been presented on 01.03.2014 against petitioner and one Jaidev, which is pending consideration before the trial Court. He further contends that the case of the petitioner so far as the respondents is concerned would be covered by the instructions dated 12.12.1988, according to which the integrity of an official may be considered as doubtful where charge-sheet has been issued/Court cases are pending, where the charges are such which cast aspersions on the integrity of the employee. The relevant portion of letter No. 3212 74188-GSI dated 12.12.1988 is reproduced below:--

"xxx xxx xxx

It has been decided that in the following kind of cases of disciplinary proceedings, the integrity may be considered as doubtful and the cases may be placed before the Officers'' Committee:--

The cases in which charge-sheet have been issued/Court cases are pending, where the charges are such which cast aspersions on the integrity of the employee''

xxx xxx xxx."

State counsel, on the basis of the challan presented before the Court, submits that the claim of the petitioner as made in the present writ petition cannot sustain as the order passed retiring him compulsorily is in consonance with the instructions governing the premature retirement of an employee.

Counsel for the State further submits that there is delay in approaching the Court as the petitioner has approached this Court after a period of almost nine months after the date of his compulsory retirement and on this ground itself, the petitioner should be ousted.

I have considered the submissions made by the counsel for the parties and with their assistance have gone through the records of the case.

The fact that FIR No. 5 of 2009 was not registered against the petitioner but against Shree Krishan Clerk has not been disputed. It is also not in dispute that the petitioner was not named in the FIR. The first untraced report was submitted on investigation before the competent authority which was accepted by the Court on 01.08.2011. The Director General of Police thereafter constituted a SIT which also on conclusion of the investigation submitted an untraced report dated 03.11.2012. The said report was accepted by the Judicial Magistrate 1st Class, Gurgaon on 06.03.2013. After the acceptance of the cancellation report, now challan is stated to have been presented on 01.03.2014 against the petitioner and one Shri Jaidev. Counsel for the State, on the basis of this recently presented challan on 01.03.2014, is trying to take the benefit of the instructions dated 12.12.1988 to bring it within the ambit of such instructions which deal with compulsory retirement of a Government employee.

In the written statement which has been filed in the Court, the only stand taken is that an FIR was registered in which investigation was then pending and the petitioner is likely to be one of the accused in the said cases, but unfortunately for the respondents, after the first investigation, cancellation report stood submitted which was accepted by the Court and thereafter even the SIT upon investigation submitted another cancellation report which also stands accepted. At the time of ordering the premature retirement of the petitioner by the respondents or at the time when the notice was issued for his premature retirement, there was nothing which would bring the case of the petitioner within the ambit of the instructions dated 12.12.1988. Even if the said instructions, as has been sought to be taken shelter by the counsel for the State, were to apply that would only be applicable after the submission of the challan, which, as admitted by the State has now been presented on 01.03.2014. Prior thereto, there was no court case pending against the petitioner on the date when the petitioner was issued notice of compulsory retirement, i.e., 28.10.2010 (Annexure P-2) and even on the date of order of his retirement dated 14.03.2011 (Annexure P-4). There being no court case pending against the petitioner nor any disciplinary proceedings, the instructions dated 12.12.1988 would not apply. None of the instructions as are applicable to the compulsory retirement of a Government employee would cover the action of the respondents in their favour.

It is not in dispute that the petitioner has the requisite 70% good reports in the last ten years of his service and there is no ACR commenting adversely upon the conduct of the petitioner, which could be taken shelter of by the respondents to deny him the extension in service.

The plea of the counsel for the State that there is delay on the part of the petitioner in approaching the Court also cannot be acceptance as the petitioner has approached the Court within a reasonable time and delay if any is that of about nine months and to this the explanation as submitted by the counsel for the petitioner is that the petitioner had served a legal notice on 18.04.2011 which was immediately after the order of retirement, i.e., 14.03.2011, was passed and he had to wait for a reasonable period of time to expect a response from the respondents. Therefore, there being virtually no delay on the part of the petitioner in taking action to challenge the correctness of the order of compulsory retirement, the stand of the State counsel stands rejected. In view of the above, the present writ petition is allowed. The impugned notice of retirement dated 28.10.2010 (Annexure P-2) and the order of retirement dated 14.03.2011 (Annexure P-4) are hereby quashed. Direction is issued to the respondents to release the consequential benefits to the petitioner within a period of two months from the date of receipt of certified copy of this order.