Shish Pal vs State Of Haryana And Ors

Jagmohan Bansal, J

The petitioner through instant petition under Articles 226/227 of the Constitution of India is seeking setting aside of order dated 14.02.2024 (Annexure P-11) whereby Additional Chief Secretary, Government of Haryana, Home Department has rejected his claim for reinstatement and affirmed his compulsory retirement order dated 14.12.2021.

The petitioner joined Haryana Police Force as Constable in 1989. He was posted in Village Singhwal to protect Warrant Officer and his associate namely Ved Parkash. The Warrant Officer was appointed to search Sonia who was allegedly detained by villagers. The villagers killed Ved Parkash. The departmental enquiry was conducted wherein petitioner was found guilty of misconduct. It was found that he had failed to discharge his duty. The Superintendent of Police, Jind vide order dated 30.06.2010 awarded him punishment of forfeiture of three increments for dereliction of duty. With respect to aforesaid incident, FIR No. 180 dated 23.07.2009, under Sections 332, 353, 186, 325, 302, 148, 149 and 506 of IPC was registered at Police Station, Sadar Narwana. The Investigating Officer recorded statement of petitioner under Section 161 Cr.P.C. He appeared as witness in the trial arising out of aforesaid FIR. He refused to identify culprits at the time of prosecution evidence. He was declared hostile. Departmental enquiry was initiated against him and he was awarded punishment of warning vide order dated 30.05.2011. Superintendent of Police, Jind vide order dated 05.07.2012 awarded him punishment of warning for indulging in extorting illegal gratification. The jurisdictional Superintendent of Police, recorded adverse remarks in his ACR for the period from April’ 2009 to November’ 2009.

Learned counsel for the petitioner submits that petitioner was awarded punishment of forfeiture of three increments with respect to incident which occurred in Village Singhwal. In the said village, at the time of alleged incident, several police officials were posted. Their statements under Section 161 Cr.P.C. were recorded. It was not only petitioner who was subjected to punishment of forfeiture of three future increments but also other officials who were part of team which was deputed in Village Singhwal. None of them was compulsorily retired rather they have been further promoted. The petitioner was subjected to punishment of warning vide order dated 05.07.2012 and said order stands set aside by this Court vide order dated 18.08.2022. There was adverse entry qua integrity in his ACR for the period from 01.04.2012 to 18.08.2012. The competent authority has already expunged adverse remarks recorded in said ACR. ACR of April’ 2009 to November’ 2009 relates to period prior to 10 years from the date of passing order, thus, it could not be relied upon. The respondent can examine entire service record, however, as per Government instructions ACRs of last 10 years are considered.

Per contra, learned State counsel submits that scope of interference in such matters is very limited. The authorities have applied their mind and came to conclusion that petitioner should be compulsorily retired. He was granted just and fair opportunity prior to passing impugned orders. The authorities were quite competent to consider his service record beyond 10 years. The authorities are free to consider entire service record.

I have heard learned counsel for the parties and perused the record of the case.

From the perusal of impugned order dated 14.02.2024 passed by Additional Chief Secretary to Government, Haryana as well as written statement, it is evident that order of compulsory retirement was passed relying upon three punishments awarded to the petitioner and two adverse ACRs.

The petitioner on 22.07.2009 was posted in Police Station Sadar, Narwana. A team of 12 officers was deputed to Village Singhwal to protect Suraj Bhan, a Warrant Officer, appointed by this Court and his companion Ved Prakash. A mob of villagers attacked Warrant Officer as well as officials accompanying him. The petitioner was injured in the said incident. Ved Prakash was murdered by villagers. An FIR No. 180 dated 23.07.2009, under Sections 332, 353, 186, 325, 302, 148, 149 and 506 of IPC was registered at Police Station, Sadar Narwana. Petitioner’s statement was recorded under Section 161 Cr.P.C. He appeared before trial Court as prosecution witness. He was declared hostile even though he claims that he did not turn hostile. The respondent initiated departmental proceedings against members of police team which accompanied aforesaid warrant officer. Punishment of forfeiture of increments was awarded to all the officials. Adverse remarks were recorded in the ACRs of 2009-10. The petitioner on account of his statement before trial Court was awarded punishment of warning vide order dated 30.05.2011. In this way, with respect to incident which occurred in Village Singhwal on 22.07.2009, the petitioner was subjected to punishment of stoppage of three increments, warning and adverse remarks in ACR. He was also subjected to punishment of warning vide order dated 05.07.2012. The said order stands set aside by this Court vide order dated 18.08.2022.

The impugned order was passed on 14.02.2024 still warning order dated 05.07.2012 was noticed which had already been set aside by this Court vide order dated 18.08.2022. In the impugned order, ACR of 2012 was not considered, however, in the reply, respondent has pointed out said ACR. Adverse remarks were recorded in ACR for the period from April’ 2012 to August’ 2012. IGP Hisar Range, Hisar vide order dated 24.07.2014 has already set aside adverse remarks recorded in aforesaid ACR. As per Instructions dated 05.02.2019 issued by State Government, ACRs of last 10 years are considered while passing order of compulsory retirement. In the Instructions, Rule 144 and Rule 145 of Haryana Civil Services (General) Rules, 2016 (for short ‘2016 Rules’) are contemplated. These instructions are applicable to Police officials like other Government employees. Rule 9.18(2) of Punjab Police Rules, 1934 (as applicable to State of Haryana) is pari materia with Rule 144 and Rule 145 of 2016 Rules. As per these instructions, service record of last 10 years should be taken into account and out of this 50% ACRs in case of retention beyond 50 years and 70% ACRs in case of retention beyond 55 years or on completion of 25 years qualifying service should be good or above. The petitioner has been compulsorily retired on completing 25 years qualifying service. He was supposed to have 70% good ACRs of last 10 years. He had 100% good ACRs of last 10 years. The impugned order was passed on 14.12.2021. The respondent has considered ACR for the period from April’ 2009 to November’ 2009 which was beyond 10 years. As per Government Instructions which are binding upon respondent, ACRs of 10 years could be considered. As per judgment noticed in the impugned order, ACRs of beyond 10 years can be considered, however, in the present case, there are Government instructions which are binding upon respondent. The ACRs beyond 10 years ought not to be considered. In any case, the petitioner was not guilty of doubtful integrity in 2009. There was allegation of cowardness. A team of 12 officers was posted at Village Singhwal. He had suffered injury in the incident which occurred in the said village. He was sufficiently punished for his act and conduct. The other officials who were part of team have not been compulsorily retired rather have been further promoted. In such circumstances, it would not be in the interest of justice and fitness of things to rely upon ACR of 2009 when there was no adverse ACR during last 10 years. The ground which formed basis of impugned orders are not plausible and convincing. The petitioner did not deserve to be compulsorily retired.

In the wake of above discussion and findings, this Court is of the considered opinion that impugned order dated 14.02.2024 (Annexure P-11) deserves to be set aside and accordingly set aside. It is hereby made clear that as conceded by petitioner, he shall not be entitled to any pay/allowances except already received for the intervening period, however, said period would be counted in the length of service. He would be entitled to salary and allowances from the date of rejoining. Let the needful be done within two weeks from today. He will comply with applicable Rules with respect to gratuity, leave encashment and other retiral dues.

Allowed in above terms.

Pending application(s), if any, also stands disposed of.