Sajjan Singh vs The State of Punjab

K. Kannan, J.—The writ petition challenges the order of compulsory retirement issued against the petitioner who had entered the Punjab Police as a constable. The impugned order was passed on 24.8.1992 in public interest and the challenge is brought through the writ petition detailing three instances, one, the petitioner had suffered forfeiture of one year service in the year 1969 pursuant to departmental action; two a criminal case had been prosecuted against him and though acquitted initially, he was convicted for the offence u/s 323 IPC; and three, in the year 1981 he was visited with ''censure'' for some indiscretion in service.

The counsel appearing on behalf of the petitioner would contend that even before the order of compulsory retirement there had been an order of dismissal passed on 20.6.1979, pursuant to the conviction of the petitioner for the offence u/s 323 IPC rendered by the High Court. The conviction was for an imprisonment for a period of six months but the State had issued an order of remission on 13.5.1982 finding that he had a good service history and the offence complained of was a trivial offence. Having remitted the sentence, consequentially, he was directed to be reinstated the same day. He was, however, dismissed subsequently on 12.5.1982 citing the very same order of conviction and on a challenge by the petitioner he was reinstated again on 27.6.1984. The department sought to correct its lapse of dismissal without notice and, therefore, served a notice and again passed an order of dismissal on 24.9.1984. This order of dismissal was a subject of challenge through civil suit by the petitioner which ended in his favour and the civil court decreed the suit on 1.9.1990 finding the order of dismissal to be erroneous. This was subject of challenge to the District Court by the State. The District Judge, while dismissing the appeal, had observed that the authority that passed the order of remission had actually taken note of the fact that the conviction u/s 323 did not involve an offence of moral turpitude and the sentence had been remitted. The reinstatement was a necessary corollary. The order of dismissal was discriminatory and the punishment accorded had failed to consider the service record of the petitioner. The District court recorded the statement of the witness cited by the State before the civil court, where there was admission that the plaintiff''s case was being approved for promotion as ASI.

The counsel for the petitioner, therefore, urged that the compulsory retirement which had for its justification only instances of some punishment of charge which were stale that had happened more than 10 years in the past, it could not be acted upon. The counsel would refer to me a judgment in the case of State of Gujarat Vs. Umedbhai M. Patel, which, while considering the effect of compulsory retirement and the scope of judicial review, crystallized the law into definite principles and summarized then in paragraph 11 as follows:-

(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.

(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.

(iii) For better administration, it is necessary to chop off dead-wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.

(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.

(v) Even uncommunicated entries in the confidential record can also be taken into consideration.

(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.

(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.

(viii) Compulsory retirement shall not be imposed as a punitive measure.

The argument is that when the civil court had termed the order of termination effected earlier on 29.10.1984 to be discriminatory and bad, the State cannot turn around and get over the effect by effecting compulsory retirement and cite the very same incident of conviction as a ground for retiring the employee.

The counsel appearing on behalf of the State would support the impugned order by referring to paragraph 9.18 of the Punjab Police Rules to source its right to issue such order and the compulsory retirement itself being not a punishment, the petitioner who had completed 55 years of service and who was compulsorily retired in terms of the rules cannot have a justifiable cause to complain.

The power of the State to compulsorily retire is not an issue put to challenge. The gravamen of attack is that the grounds do not exist for without it, any State action would be liable for arbitrary exercise of power. Though the State did not spell out the reason for passing an order of compulsory retirement, I have extracted the three grounds which prevailed for them to take the decision. Out of them, one became irrelevant, namely, conviction in a criminal case which was later remitted by the State and which had been a subject of judicial adjudication through a civil court that became final. We are left with only two other points as of some relevance, one forfeiture of one year service in 1969 and another, ''censure'' in the year 1981. We are considering the order of retirement passed in the year 1992. Neither the forfeiture of one year service of 1969 nor the censure of 1989 could be of any relevance if we must apply the law enunciated in Umedbhai M. Patel that is extracted above. Among other principles laid down; as per sub clause (vi), the Supreme Court has ruled that compulsory retirement shall not be passed as a short cut to avoid departmental inquiry. Here, there was not even a departmental inquiry and the attempt to scuttle his service by dismissal was successfully challenged in a civil court that characterized the dismissal as discriminatory and bad. This decree itself has resulted, during the pendency of the proceedings, when the decree was put in execution, to earn for the petitioner a promotion to the post of Assistant Sub Inspector in the year 1984 and Sub Inspector in the year 1989. This was precisely also in issue that the Supreme Court dealt with, while setting out the law of when a person had been given a promotion despite adverse entries that would be relevant. If we must recreate a situation flowing from civil court decree of a person who had earned promotion in the year 1984 and 1989, although the orders had been passed post the impugned order, it should be taken as a favourable circumstance that would set at naught the compulsory retirement that was imposed upon the petitioner. The order cannot stand in the light of the circumstances and the law laid down by the Supreme court.

The impugned order is consequently quashed. All the monetary benefits consequent upon such order would be calculated and released to the petitioner within a period of 12 weeks, failing which the amount determined shall attract interest @9% from the date due till realization. The writ petition is allowed with costs of Rs. 10,000/- against the State.