Sarnam Singh Dangi vs State of Haryana

Augustine George Masih, J.—Petitioner has approached this Court impugning the order dated 02.12.1992 (Annexure P-6) retiring the petitioner compulsorily on completion of age of 55 years. The ground for doing so is the three adverse entries recorded on the integrity of the petitioner for the years 1984-85, 1985-86 and 1987-88. Counsel for the petitioner contends that these adverse entries which have been relied upon by the respondents for compulsorily retiring the petitioner were not conveyed to the petitioner prior to 18.11.1991. The same thus could not have been taken into consideration for passing the impugned order. Apart from this, he contends that the petitioner has been promoted to the post of Head Teacher in the year 1988 which is subsequent to the period for which the Annual Confidential Reports have been recorded to be adverse against the petitioner. The same thus could not have been taken into consideration for passing the order of compulsory retirement. In support of this contention, reliance has been placed by the counsel for the petitioner on the judgment of this Court in Joginder Singh v. Haryana State Electricity Board, Chandigarh 2004 (3) SCT 314, which is passed relying upon the judgment in Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, Prayer has thus been made for setting aside the impugned order and granting the consequential benefits of continuance in service till the date of his superannuation.

On the other hand, counsel for the respondents submits that although the adverse Annual Confidential Reports were conveyed to the petitioner on 18.11.1991 and received by the petitioner on 25.11.1991, no representation against the same has been filed by the petitioner despite he having adequate opportunity to do so. Petitioner having accepted the adverse Annual Confidential Reports recorded against the petitioner cannot be now agitate and put forth an argument that the same cannot be taken into consideration by the respondents for passing an order of retiring him prematurely in exercise of powers under Rule 3.26(d) of the Punjab Civil Services Rules Volume-I, Part-I read with the Rule 5.32-A(c) and note therein. Counsel for the respondents has referred to the latest judgment in the case of Rajasthan State Road Transport Corporation and Others Vs. Babu Lal Jangir, to contend that the order of compulsory retirement is neither punitive nor stigmatic and is based on subjective satisfaction of the employer. The power to retire compulsorily, the Government servant in terms of service rule is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest.

His further contention is that the Hon''ble Supreme Court has relied upon its earlier judgment in The State of Punjab Vs. Gurdas Singh, which is a three Judge Bench where it has been held that the adverse entries prior to promotion or crossing of efficiency bar or picking up higher rank are not wiped off and can be taken into account while considering the overall performance of the employee when it come to the consideration of case of that employee for premature retirement. He contends that there are three adverse entries which were conveyed to the petitioner and pertain to his integrity which have attained finality and therefore, reliance thereon for passing the impugned order is fully justified. Counsel for the respondents has also placed reliance upon the Division Bench judgment of this Court in Mohinder Pal v. State of Haryana, 2006 (6) SLR 69 to contend that if integrity of an employee is doubted even once then such an employee may have to be chopped off as a deadwood, which is in larger public interest. Prayer has thus been made for dismissal of the writ petition.

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 facts as have been narrated above being not in dispute and need not be referred to again.

The first contention of the counsel for the petitioner is that the adverse Annual Confidential Reports of the petitioner for the year 1984-85, 1985-86 and 1987-88 which have been taken into consideration by the respondents for issuing notice of retirement of the petitioner dated 02.12.1992 (Annexure P-6) cannot be taken into consideration as the same was not conveyed to the petitioner prior to 18.11.1991 but this contention cannot be accepted as it is an admitted position that the same were conveyed to the petitioner vide letter dated 18.11.1991 (Annexure P-3). Notice of retirement was served after a period of more than one year to the petitioner i.e. on 02.12.1992. During this period, the petitioner did not submit any representation against the adverse remarks recorded in his Annual Confidential Reports. The said adverse remarks in his Annual Confidential Reports have attained finality and had rightly been taken into consideration by the competent authority for issuing notice of retirement.

The contention of the counsel for the petitioner that since the petitioner has been promoted to the post of Head Teacher in the year 1988 and, therefore, these three Annual Confidential Reports cannot be taken into consideration, cannot be accepted in the light of the judgment of the Hon''ble Supreme Court in Babu Lal Jangir''s case (2013 Lab. IC 4215) (supra) where after discussing the law on the question of compulsory retirement, the Court has observed in paras 23, 24 and thereafter in 28 as follows:-

It clearly follows from the above that the clarification given by two Bench judgment in Badrinath is not correct and the observations of this Court in Gurdas Singh to the effect that the adverse entries prior to the promotion or crossing of efficiency bar or picking up higher rank are not wiped off and can be taken into account while considering the overall performance of the employee when it comes to the consideration of case of that employee for premature retirement.

The principle of law which is clarified and stands crystallized after the judgment in Pyare Mohan Lal Vs. State of Jharkhand and Others, is that after the promotion of an employee the adverse entries prior thereto would have no relevance and can be treated as wiped off when the case of the Government employee is to be considered for further promotion. However, this ''washed off theory'' will have no application when case of an employee is being assessed to determine whether he is fit to be retained in service or requires to be given compulsory retirement. The rationale given is that since such an assessment is based on "entire service record", there is no question of not taking into consideration an earlier old adverse entries or record of the old period. We may hasten to add that while such a record can be taken into consideration, at the same time, the service record of the immediate past period will have to be given due credence and weightage. For example, as against some very old adverse entries where the immediate past record shows exemplary performance, ignoring such a record of recent past and acting only on the basis of old adverse entries, to retire a person will be a clear example of arbitrary exercise of power. However, if old record pertains to integrity of a person then that may be sufficient to justify the order of premature retirement of the Government servant.

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It hardly needs to be emphasized that the order of compulsorily retirement is neither punitive nor stigmatic. It is based on subjective satisfaction of the employer and a very limited scope of judicial review is available in such cases. Interference is permissible only on the ground of non-application of mind, mala fide, perverse, or arbitrary of if there is noncompliance of statutory duty by the statutory authority. Power to retire compulsorily, the Government servant in terms of service rule is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest.

In view of the above, the contention of the counsel for the petitioner, therefore, stands rejected. The judgment in the case of Joginder Singh''s case (supra) which has been relied upon by the counsel for the petitioner would not be applicable to the case in hand in the context in which it is sought to be projected to his benefit. It may be added here that the said judgment has held that premature/compulsory retirement is not a punishment or stigma but only an opinion to retire the Government servant in public interest where the principle of natural justice have no application. Even uncommunicated remarks can also be taken into consideration and there is limited scope for judicial scrutiny limiting it to a situation where the order is passed with mala fide or is arbitrary or based on no material. The said judgment would go against the petitioner and not support the claim of the petitioner as has been sought to be asserted by the counsel.

In Mohinder Pal''s case (supra), the Division Bench of this Court has laid down that once there is an entry of integrity doubtful in the service record of an employee, then it is considered to be in larger public interest to retire such a person prematurely. In reaching to this conclusion reliance in this regard was placed by the Division Bench on the judgment of the Hon''ble Supreme Court in the cases of Union of India Vs. Ajoy Kumar Patnaik, and Jugal Chandra Saikia Vs. State of Assam and Another, In Babu Lal Jangir''s case (supra) also, Hon''ble Supreme Court has held that even if an entry pertain to the integrity of the person, the same cannot be ignored and may be sufficient to justify the order of premature retirement of a Government servant. For this, reliance was placed upon the earlier judgment of the Hon''ble Supreme Court in Pyare Mohan Lal Vs. State of Jharkhand and Others, In view of the above, finding no merit in the present writ petition and the same stands dismissed.