Ramesh Chander vs Punjab State Power Corporation Ltd. and Others

Rajesh Bindal, J.—The petitioner, who was working as Additional Assistant Engineer with Punjab State Power Corporation Ltd., (for short,

''the Corporation''), has approached this court impugning the order dated 20.5.2011, whereby he has been prematurely retired. Learned counsel

for the petitioner submitted that the petitioner was appointed as Lineman on 9.2.1978. He was promoted as Junior Engineer in October, 1981. On

10.7.2007, he was promoted as Additional Assistant Engineer. It is at this stage that the petitioner was pre-maturely retired unceremoniously,

which is the result of vindictiveness on the part of respondent No. 3. On 22.3.2011, the petitioner was transferred to Aggar Nagar Division,

however, he was not permitted to join service there on the instructions of respondent No. 3. When his representations and even legal notice got

issued to the authorities did not yield any result, he had to approach this court by filing C.W.P. No. 7935 of 2011, which was disposed of on

5.5.2011 directing the authorities to decide the legal notice within one week from the date of receipt of copy of the order. The authorities were

also directed to permit the petitioner to join at the place of posting in case order of transfer was still operative. On 12.5.2011, the petitioner was

permitted to join. Thereafter, immediately respondent No. 3 became inimical to the petitioner and passed the impugned order on 20.5.2011

prematurely retiring him without following due procedure and without considering the service record of the petitioner. He was in haste in passing

the order for the reason that he himself was to retire on 31.5.2011.

While referring to the impugned order, learned counsel for the petitioner submitted that the punishments, which are referred to in the impugned

order, were minor punishments which were inflicted on him prior to his promotion as Additional Assistant Engineer in the year 2007. The same had

lost significance. None of the punishments was such which could be made the basis for forming an opinion that the petitioner is a dead wood and

should not be allowed to continue in service. In fact, the petitioner had already attained the age of 55 years in October, 2009, whereas his case for

extension in service was considered in May, 2011, when he had only 1-1/2 years of service left before his retirement on superannuation, which is

due on 31.10.2012. The report referred to in the impugned order dated 20.5.2011 is procured one, as the petitioner had worked with the officer

concerned merely for a period of 7-8 days.

A reference has been made to the instructions dated 24.8.1995 and 5.9.2002 for taking action against the petitioner. While referring to the

instructions dated 24.8.1995, learned counsel for the petitioner submitted that the same provide for constitution of a Committee to scrutinise the

record of the employee for making recommendations to the competent authority in the Corporation. Entire record of the employee concerned

including performance, reputation, personality traits, mental and physical fitness, integrity as well as over-all grades earned in the ACRs as also the

disciplinary cases pending against the employee are required to be considered. The Committee, in its proceedings, is required to broadly indicate

the basis on which it comes to the conclusion that the employee should not be retained in service. Though earlier one of the clause in the policy was

that even an average employees may be weeded out, however, the same was deleted.

He further referred to a communication dated 5.10.1995 (Annexure P-5), in terms of which in supersession of all previous orders, High

Empowered Integrity Committees were constituted to screen the cases of officers for allowing continuation in service beyond the age of 50/55

years. In clause (d) thereof, for Assistant Engineers (Electrical/Civil), the Committee consisted of Member/Operations as Chairman, SE (to be

nominated by Administrative Member) and Director/Personnel as Members and Deputy Secretary/Services-I as Convenor. The submission is that

the case of the petitioner has not been screened by the Committee as constituted in the aforesaid policy of the Corporation, rather, it was the Chief

Engineer himself, who was instrumental in getting the petitioner pre-maturely retired by getting all the proceedings concluded in a day.

He further referred to a communication dated 5.9.2002, whereby the decision of the erstwhile Board was conveyed that in future all the

recommendations made by High Empowered Integrity Committee, for pre-mature retirement of employees from service, shall be put up before

whole-time member for approval. Though the aforesaid instructions have been referred to in the impugned order, but have been totally violated, as

there is no approval of the whole-time member in the case of the petitioner. He further submitted that the case of the petitioner has not even been

approved by the appointing authority. When the petitioner was promoted, the order was passed in terms of an order passed by the

Director/Personnel Zone T, whereas the order of pre-mature retirement has been passed by the Engineer-in-Chief/Operation of the Corporation.

He further submitted that all the ACRs of the petitioner are either ''good'' or ''very good''. There is no complaint about the integrity. The same have

totally been ignored.

Learned counsel further submitted that though in the impugned order, reference was made to the instructions dated 24.8.1995 and 5.9.2002,

but in the reply filed by the respondents, reliance is sought to be placed upon the instructions which have been placed on record as Annexures

R3/1 to R3/3. The reliance thereon is totally misplaced as those instructions pertain to the cases of non-gazetted employees, who were in clerical

or administrative cadre. The petitioner is a gazetted officer working on technical side.

Learned counsel further submitted that even in terms of Punjab State Electricity Board Services (Premature Retirement) Regulations, 1982 (for

short, ''the Regulations''), three months'' notice before pre-mature retirement is mandatory. Though the period thereof can be curtailed but it cannot

be waived off totally, as has been done in the present case. Had the petitioner been issued a notice pointing out the reasons for which he was

sought to be pre-maturely retired, he could have explained his position to the satisfaction of the authority, but in the present case, the action against

the petitioner was taken so fast that the meeting was held on 20.5.2011 and on the same day, the petitioner was even relieved without there being

any approval of the competent authority.

Learned counsel further referred to the affidavit dated 13.1.2012 filed by respondent No. 3, wherein it has been stated that the deponent therein

had directed that list of all employees, whose integrity was doubtful, be forwarded to the office at Engineer-in-Chief level. Thirty one of the

employees, whose antecedents were forwarded, were short-listed. Permission of the Chairman-cum-Managing Director was obtained on phone

on 18.5.2011 to proceed with pre-mature retirement of the employees after holding meeting of the High Empowered Integrity Committee. The

decision was taken in the aforesaid meeting on 20.5.2011, which was attended by other senior officers. It was based upon the material placed

before the Committee. There was no mala fide. While controverting the stand sought to be taken by respondent No. 3 in his affidavit, learned

counsel for the petitioner submitted that the case of the petitioner could not have been placed before the High Empowered Integrity Committee

even as per the stand taken by respondent No. 3 for the reason that throughout his career the petitioner never got an entry of ''integrity doubtful''.

There were abrasions for which minor punishments were imposed but not pointing out a finger on his integrity. The plea that record pertaining to 31

employees was placed before the said Committee was merely an eye-wash. No action was taken against any other officer/official. Their cases

were just put up without there being any record. None of them was recommended for pre-mature retirement. If the cases of the employees, whose

integrity was doubtful, were to be placed before the High Empowered Integrity Committee, why no action was taken against any one of them and

it was only the petitioner who was singled out. Learned counsel relied upon Tej Pal Singh Vs. State of U.P. and Another, ; Brij Mohan Singh

Chopra Vs. State of Punjab, Ram Kishan v. State of Haryana, 1994(3) S.C.T. 609 (P&H) and State of Punjab and others v. Shri Khushi Ram,

ASI(Retd.), 2007(4) SCT 432 (P&H) in support of his arguments.

In response to the contentions raised by learned counsel for the petitioner, learned counsel for the respondents submitted that in terms of

Regulation 2(1) of the 1982 Regulations, the appropriate authority to take action in the matter of pre-mature retirement is the appointing authority.

In the present case, the appointing authority of the petitioner is General Manager/Engineer-in-Chief/Chief Engineer. It has been so stated in the

affidavit of R.P. Pandove, Chief Administrator of the Corporation dated 21.4.2012, which was filed in terms of the order passed by this court on

1.3.2012. The action having been taken against the petitioner by the Chief Engineer cannot be said to be without jurisdiction.

Learned counsel further submitted that the instructions (Annexures R3/1 to R3/3) are, in fact, applicable in the case of the petitioner for the

reason that he is a non-gazetted employee as against the instructions referred to in the impugned order. If considered in the light thereof, the

contention raised by learned counsel for the petitioner that the case of the petitioner has been considered by an authority which is not competent is

totally misconceived. However, learned counsel was not able to point out from any material on record that post of the petitioner is to be

considered as non-gazetted.

Learned counsel further referred to a representation made by the petitioner himself for his transfer on 20.4.2012 stating that he was not

keeping good health. In fact, he was defying the orders of the higher authorities. The matter was even got enquired into through senior Executive

Engineer. Prior to passing of the impugned order, entire record of the petitioner was placed before High Empowered Integrity Committee, which

was considered before taking the decision. It is the subjective satisfaction of the employer. The matter cannot be gone into in the writ petition as a

court of appeal. There is no mala fide as is sought to be alleged. Whatever action was taken by respondent No. 3, that was in discharge of his

official duties in good faith, in best interest of the Corporation. He further submitted that all the punishments inflicted on the petitioner throughout his

career have been mentioned in the impugned order which show what kind of officer the petitioner was. It is misconceived to argue that at the time

of consideration of the case of an employee for pre-mature retirement, his entire record is not to be considered. When the matter was put up

before the High Empowered Integrity Committee, it was concluded that continuance of the petitioner in service, after he had already attained the

age of 55 years, was not in best interest of the Corporation. Not only this, some other disciplinary proceedings were in contemplation against the

petitioner. A complaint about his integrity had also been received. The same were closed as the petitioner had been pre-maturely retired. In

support of his submissions, learned counsel for the respondents placed reliance upon a judgment of Hon''ble the Supreme Court in Pyare Mohan

Lal Vs. State of Jharkhand and Others, and judgments of this court in 2012(1) S.C.T. 272 : L.P.A. No. 1305 of 2011 ASI Gurbachan Singh v.

State of Haryana and others, decided on 1.11.2011 and 2012(4) S.C.T. 250 : C.W.P. No. 395 of 2006 - Randhir Singh v. Hon''ble High Court

of Punjab and Haryana and another, decided on 27.7.2012.

Heard learned counsel for the parties and perused the paper book.

Hon''ble the Supreme Court in Pyare Mohan Lal''s case (supra) summed up the legal position on compulsory retirement while referring to

earlier judgments on the subject. It has been opined that it is not a punishment. The order is passed on the subjective satisfaction of the employer.

Principles of natural justice have no place. However, still may not be as a court of appeal, but judicial review of the order of compulsory retirement

is possible and the order can be interfered with in case it is tainted with mala fides, based on no evidence or the order is arbitrary in the sense that

no reasonable person could form such opinion on the given material, i.e., being a perverse order. The relevant paragraph thereof is extracted

below:

Compulsory Retirement

In Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, , this court has laid down certain criteria for the

Courts, on which it can interfere with an order of compulsory retirement and they include mala fides, if the order is based on no evidence, or if the

order is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, i.e., if it is found to be a perverse

order. The court held 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 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 the 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) 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 un-communicated adverse

remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.

Now coming to various contentions raised by learned counsel for the parties. It is misconceived to argue that prior to passing of the order of

pre-mature retirement, the petitioner was required to be served with a notice. Learned counsel for the petitioner sought to argue that though it is

provided that normally three months notice is required to be given but in the alternative it can be for a period less than three months with pay for

the differential period. The notice cannot be waived off in entirety. A perusal of the Regulations clearly shows that the appropriate authority, if it is

of the opinion that it is in public interest to do so, has absolute right to retire a government employee after he completes 25 years of qualifying

service or attains 50 years of age or on any date thereafter by giving him prior notice of three months in writing. The proviso thereto provides that

where three months'' notice is not given, the employee shall be entitled to get salary for the notice period of three months or the differential period

in case the notice falls short of three months. Hence, the contention that notice having not been given the order deserves to be set aside, is rejected.

Though one of the contentions sought to be raised by learned counsel for the petitioner was that the petitioner having been promoted to the

post of Additional Assistant Engineer by an order passed by the Director/Personnel, he could not have been compulsorily retired by the Chief

Engineer, as against which the contention sought to be raised by learned counsel for the respondents was that the appointing authority for the post

of Additional Assistant Engineer is the General Manager/Engineer-in-Chief/Chief Engineer, however, no definite finding can be recorded thereon as

none of the parties have produced before the court the relevant rules prescribing the competent authority for appointment to the post of Additional

Assistant Engineer.

Before this court proceeds to deal with the issue on merits, namely, the validity of the order of pre-mature retirement, it is appropriate to set at

rest the controversy regarding application of instructions in the impugned order. The authorities have referred to instructions dated 24.8.1995 and

5.9.2002 for taking action against the petitioner, whereas in the reply filed by the respondents, deviating from what has been stated in the impugned

order, a stand was sought to be taken that in fact various instructions issued on 11.2.2003, 13.5.2003 and 28.7.2003, annexed with the written

statement as Annexures R3/1 to R3/3, are applicable. The contention sought to be raised by learned counsel for the respondents is totally

misconceived in case the instructions sought to be relied by him are perused. These are applicable for consideration of cases of non-gazetted

employees, as is even evident from the subject-matter mentioned in the aforesaid instructions. The aforesaid instructions specifically provide the

kind of employees to which these are applicable.

The instructions dated 11.2.2003 and 13.5.2003 refer to the following kinds of employees for consideration of their cases for continuation in

service:

All Supdt. Gr. II

All Sr. Asstts./P.As, Stenographers (Sr. Scale & Jr. Scale Stenographers) working in the office of Secretary, C.A.O., Chief Auditor, ADGP

and CEs at Patiala and other stations.

UDCs, LDCs, Steno-Typists and other categories of employees working in different Branches of this office i.e., Secretary''s office.

A perusal of the above referred designations show that Additional Assistant Engineers are not covered therein. As against that, the case set up

by the petitioner is that in terms of the instructions dated 5.10.1995 (Annexure P-5), certain committees were constituted for dealing with the cases

of pre-mature retirement of the employees as per the Regulations. Clause (d) thereof provides for the Committee for consideration of cases of

Assistant Engineers (Electrical/Civil). It is not in dispute that the petitioner was working as Additional Assistant Engineer. He will certainly fall in the

category of Assistant Engineer. The constitution of the Committee was as under:

(d) Assistant Engineers (Elect./Civil)

(1) Member/Operations

(2) SE (to be nominated by Administrative Member)

(3) Director/Personnel

(4) Dy. Secy./Services-I

The instructions of the Corporation dated 5.9.2002 (Annexure P-6) have been referred to show that after screening of the cases of the officers

for continuation of service beyond 50/55 years by the High Empowered Integrity Committee, where recommendation is for pre-mature retirement

from service, the matter is to be put up before whole-time member for approval.

Now coming to the facts of the present case. The order of premature retirement dated 20.5.2011 (Annexure P-3) has been passed by the

Engineer-in-Chief/Operation, Central PCPL, Ludhiana. It refers to some meeting of the High Empowered Integrity Committee held on 20.5.2011

in which decision was taken to pre-maturely retire the petitioner. In the endorsement, it is referred to that copy thereof was forwarded to the

Chairman-cum-Managing Director with reference to conversation with him at Ludhiana on 18.5.2011 and to the Director of the Corporation with

reference to a talk held in his office on 17.5.2011.

A file was produced in court by learned counsel appearing for the Corporation in which there are some documents in original, whereas photo

copies of some of the documents are available. One of the document on record is the record of minutes of first meeting held on 20.5.2011. It was

attended by Engineer-in-Chief/Operation, Central Zone; Deputy Chief Engineer/Headquarter, Central Zone and Deputy Chief Engineer/Operation,

Western Zone Ludhiana. The subject of the meeting was to consider the cases of the employees for extension in service, who had completed

50/55 years of age. Only the case of the petitioner was considered in that meeting. It was mentioned therein that the petitioner had completed 55

years of age in October, 2009. In the column of fitness report, it has been mentioned that Senior Executive Engineer had reported vide his

confidential communication dated 20.5.2011 that the incumbent was not keeping good health. He was suffering from diabetes and blood pressure

and had pressure on his mind throughout the day. His annual confidential reports for the last 10 years were also referred to, in terms of which the

petitioner earned the reports as follows:

For the period from 6.4.2000 to 30.6.2000, 6.12.2000 to 31.3.2002, 1.4.2004 to 10.6.2004 and 10.11.2004 to 31.3.2005, the reports

were not written, as the incumbent was under transfer.

In the column of disciplinary proceedings pending against the petitioner, it was mentioned that one show cause notice No. C124 issued to him

on 12.5.2009, was pending. While taking the decision, the Committee observed that the record of the petitioner is very bad. At the relevant time,

the Controlling Officer of Central Division, Ludhiana vide letter No. 35 dated 20.5.2011 submitted that when the petitioner was working under him

at Habowal AAE/Unit No. 2 in Aggar Nagar Division, his conduct was very irresponsible and he used to instigate the public and give statements

against the department. He used to condemn the officers and did not discharge his duties properly and therefore, law and order problem was

created. Therefore, under the Regulations, the petitioner is not entitled for extension of service.

Another document on record is in the form of minutes of meeting for consideration of the cases of the employees who had crossed 50/55 years

of age for their retention in service beyond that. The aforesaid meeting was also held on 20.5.2011. It was attended by Engineer-in-

Chief/Operation, Central Zone, Ludhiana; Deputy Chief Engineer/Administration-cum-Personnel, Central Zone, Ludhiana; Deputy Chief Engineer,

Sub Urban Halqa, Ludhiana; Deputy Chief Engineer/Operation, Khanna; Deputy Chief Engineer/Operation, Western Zone, Ludhiana and Under

Secretary/Establishment. The cases of 31 officers/officials were considered in the meeting, which included J.Es., P.As., Senior Assistants,

Additional Assistant Engineer, SSO and Foremen. In the aforesaid meeting, the only decision taken was that the employee at Sr. No. 31, namely,

the petitioner should be retired from service in terms of the recommendations made by High Empowered Integrity Committee in its meeting held on

20.5.2011. The other 30 employees in the list of the cases considered by the Committee in its meeting were allowed to continue beyond 50/55

years of age. A perusal of the aforesaid minutes of meeting shows that copies thereof were endorsed to Deputy Chief Engineer, Sub Urban Zone,

Ludhiana; Deputy Chief Engineer/Operation, Khanna and Deputy Chief Engineer/Operation, Western Zone, Ludhiana on 2.6.2011.

In the affidavit of Er. Paramjit Singh Gill, retired Engineer-in-Chief/Operation Central Zone, Ludhiana dated 13.1.2012, it has been stated that

he directed for preparation of the list of employees whose integrity was doubtful. It was to be forwarded to the Engineer-in-Chief/Operation,

Central Zone, Ludhiana. Thirty-one employees were short listed. However, a perusal of the file produced before the court shows that in none of

the ACRs of the petitioner, his integrity was recorded as doubtful. The record pertaining to other 30 employees was not available in the file. Copy

of memo No. 35 (Confidential) dated 20.5.2011 commenting about the work and conduct and health of the petitioner, as was referred to in the

first meeting on 20.5.2011 headed by Engineer-in-Chief/Operation, Central Zone was neither available on record, nor was even referred to at the

time of hearing. The minutes of meeting show that report against the petitioner was received on 20.5.2011. The meeting of the first Committee

consisting of three members was held on 20.5.2011. The minutes were marked to different officers and were approved on the same date. The

subsequent meeting consisting of six different officers was again held on 20.5.2011. Though the document available on file refers to its title as

Minutes of Meeting"", however, the same has not been signed by any of the Members of the Committee. It has only been signed by Under

Secretary/Establishment. These were endorsed to different officers on 2.6.2011. Still on 20.5.2011, the order was passed directing pre-mature

retirement of the petitioner w.e.f. 20.5.2011 after-noon. The order even refers to different punishments inflicted on the petitioner which were not

forming part of the record at the time of consideration of the case of the petitioner for extension in service beyond 50/55 years. The same are as

under:

Chief Engineer/Controller South Patiala vide order No. 438 dated 6.5.1991 had stopped one increment with cumulative effect.

Secretary Establishment Patiala vide office order No. 16 dated 22.1.2004 had issued a condemnation letter and upheld the recovery of Rs.

504459/-.

Engineer-in-Chief/Controller Central Ludhiana vide office order No. 1171 dated 29.12.2003 issued a warning letter.

Engineer-in-Chief/Controller Central Ludhiana vide office order No. 39 dated 5.2.1999 stopped one increment without cumulative effect.

Secretary Establishment II Patiala vide order No. 204 dated 14.3.2006 stopped one increment without cumulative effect.

Chief Engineer/TL Patiala vide office order No. 14 dated 30.1.2007 issued a warning letter.

Engineer-in-Chief/Controller Central Ludhiana vide office order No. 509 dated 17.9.2008 issued a warning letter.

Even a cheque for salary for three months was also prepared on the same day which was sent along with the order retiring the petitioner

prematurely. From the procedure which was followed in the process, it is evident that entire action was taken in haste without appreciation of

documents. There is no prior approval of minutes of the meeting of the competent authority before conveying the order of premature retirement to

the petitioner. It was sought to be explained by Engineer Paramjit Singh Gill, retired Engineer-in-Chief, in his affidavit that the matter was already

discussed with the Managing Director-cum-Chairman of the Corporation on 18.5.2012 and he had given permission to proceed with the cases of

premature retirement of the employees after holding meeting of the High Empowered Integrity Committee. If the action was to be taken to consider

the cases of the employees for continuation in service beyond 50/55 years, the same should not have been in haste especially considering the fact

that the petitioner had already crossed the age of 55 years and was to retire in next 1-1/2 years after he was pre-maturely retired. One of the

contention raised by learned counsel for the petitioner for the hasty decision was that the Engineer-in-Chief, who was inimical to the petitioner, was

himself to retire on 31.5.2011. He wanted to ensure that the petitioner is retired from service prior thereto. But there is no material placed on

record to record a definite finding regarding malafide against him.

Merely because an employee earns good reports in the proceeding years is not a presumption that he cannot be corrupt in future. In case,

there is some material available with the authorities in that regard, the same can still be considered despite there being earlier good reports. The

other factors, as may be relevant for retiring an employee pre-maturely at the age of 50/55 years, can also be considered. The decision has to be

on consideration of the material in larger interest of the institution. It is a case in which repeatedly the petitioner had been representing the

authorities that he is not keeping good health. If that is the ground for pre-mature retirement, the same can also be considered. There is one

complaint made by Kulwant Singh of Ludhiana on record raising serious allegations of corruption against the petitioner, referring to his life-style.

The same was closed as the petitioner had been pre-maturely retired. For the reasons mentioned above, the impugned order dated 20.5.2011

retiring the petitioner pre-maturely is quashed with consequential benefits. However, the order shall not debar the authorities from taking any action

against the petitioner by following due process of law. The authorities shall be at liberty to re-open the departmental proceedings, which were

closed on account of pre-mature retirement of the petitioner.