State of Punjab vs Hardit Singh

M.L. Singhal, J.—Hardit Singh plaintiff joined the service of the Punjab Govt. as Overseer on 6.8.1954. He passed Sections A and B of AMIC (India), which is an equivalent qualification to degree in Engineering, he was selected by the Punjab Public Service Commission for appointment as temporary Engineer (SDO). He joined as temporary Engineer/SCO on 30.7.64. His date of birth is 1.1.1935. He should have retired on superannuation at the age of 58 years on 31.12.1992. He was promoted to the post of Executive Engineer on 3.2.1981 on the recommendation of the screening committee constituted under rule 8 of the Punjab Service of Engineers Class-I (PWD Irrigation Branch) Rules, 1964. He joined as Executive Engineer on 5.2.81. He was not conveyed any adverse remarks during his service career except a single entry recorded by defendant No. 2 (Shri K.K. Gupta, now Chief Engineer, Kandi Area Development, Sector 17, Chandigarh), the then Superintending Engineer, Dholbaha Dam Construction Circle, Hoshiarpur. He recorded adverse remarks in his ACR out of malice and without any competence. From the date of his promotion as Executive Engineer till he was compulsorily retired in the wake of the order dated 20.3.91, no adverse remark was ever conveyed to him except the one recorded maliciously by Shri K.K. Gupta. He was transferred on 3.1.86 to Hoshiarpur under Shri K.K. Gupta who wanted to retain one Shri D.R. Sudhakar who was Executive Engineer then posted there whom he was to replace. Shri K.K. Gupta wanted to retain Shri Sudhakar as he was hand in glove with him and with Shri B.D. Bali, Chief Engineer. Shri K.K. Gupta persuaded Shri Bali for the cancellation of his (plaintiffs) transfer to that place. Govt. did not agree with the proposal to cancel his transfer vice Shri D.R. Sudhakar. Plaintiff became the escape goat of the wrath of Shri K.K. Gupta who began nursing grudge against him as he had been posted there by the government against his wishes. When he joined the Division on 3.1.86, he observed that there was unequal distribulion of work with Junior Engineers working under Shri N.K. Saddi in Kandi Water Shed Drainage Sub Division No. 2. Relying upon the instructions of the Chief Engineer in letter dated 15.3.79 and in the interest of better management, control etc, he withdrew part of work from Gurnam Singh and S.P. Sharma and alloited that work to Manohar Singh and Gurmit Singh who were sitting idle. Shri K.K. Gupta did not relish the withdrawal of part of work from Gurnam Singh and S.P. Sharma and its allotment to Manohar Singh and Gurmit Singh. Gurnam Singh and S.P. Sharma were working against the public interest. Shri K.K. Gupta instigated Gurnam Singh to disobey him, Gurnam Singh started disobeying him and continued to make entries in respect of the works transferred from him and avoided getting the works checked from him. Whenever he was asked that he should submit works to be checked by him, he avoided the checking of the works by him so as to conceal the fudge bills for the works not executed at site and exaggerated bills for the works executed substandard and also the bills for the works for which he had no authority for their execution. Shri K.K. Gupta knew that he would raise objections against payments of these bills if submitted for pre-audit. Shri K.K. Gupta passed orders that bills would be passed by the SDO without pre-audit. He thus violated the mandatory provision requiring pre-audit of the bills before making payments. Shri K.K. Gupta in order to hoodwink the whole issue, told him that he had passed orders that bills would be passed by the SDO without pre-audit because he (plaintiff) was not found in his office on 31.3.86 which was incorrect and a clear mischief on his part. Plaintiff refused to sign forms PWA-42 and PWA-45 in respect of the accounts of March, 1986 which incorporated the illegal payments made by JEs/SDOs at the instance of Shri K.K. Gupta. Shri K.K. Gupta for saving his own skin, received false complaints against him from the contractors which were anonymous and undated. Plaintiff replied to this communication of Shri K.K. Gupta vide letter No. 1696/6A. In the next year beginning from 1.4.86, Shri K.K. Gupta out of malice and ill-will, transferred all the works, jeeps, staff of the Division and record to Shri Y.D. Uppal, Executive Engineer, Janauri Chohar Construction Division and for this purpose, he stooped so low that he began corresponding with JEs direct. He arranged the payments of the transferred works from the budget of Executive Engineer, Janauri Chohar Construction Division which was actually allotted against some other head of account. Plaintiff took charge of the Division on 3.1.86. Accounts for the month of January 1986 were sent to A.G., Punjab on due date. No passed bill relating to the account of January 1986 was left to be incorporated in the said account. When the accounts for the month of February, 1986 duly compiled were put up to the plaintiff, he found that there were a number of bills passed over the signatures of D.R. Sudhakar who had left the Division on 3.1.1986. Enquiries made by him revealed that the signatures on bills were procured from Shri D.R. Sudhakar at his residence at Ludhiana for the month of February at the instance of Shri K.K. Gupta to consume the surplus on the estimated amounts. Plaintiff reported the matter to Shri K.K. Gupta who was the Superintending Engineer of the Circle and placed the amount of such bills in the miscellaneous advances of the JE and SDO concerned for effecting recovery from them. The plaintiff came to know subsequently that the amount had been cleared from the PW Misc. Advance at the instance of Shri K.K. Gupta and the defaulters were let off. S.P. Sharrna misbehaved with him and created indiscipline. Shri K.K. Gupta transferred S.P. Sharma on the request of the plaintiff but S.P. Sharma refused to receive/obey the said orders of transfer. Plaintiff relinquished the charge on 13.7.1986. Reporting officer wrote the report for this period on 16.2.1987 while the instructions of the government conveyed vide order dated 7.6.1982 say that ACR should be written when either the reporting authority or reported officer relinquishes the charge of the post and in such a case it shall be written within 2 months of the relinquishment of the charge of the post. The next authority who was to endorse the report retired from service on 30.4.1987. Adverse report was conveyed to him on 12.6.1987. He remained posted under Shri K.K. Gupta from 3.1.1986 to 13.7.1986. As per the instructions of the government, Shri K.K. Gupta was not competent to report on his work and conduct for the year 1985-86 as his stay under him was for less than 3 months. Shri K.K. Gupta had no material whatsoever with him to record adverse remarks on his work and conduct in his ACR. He did so because he refused to be party to the misappropriation of public funds.

Plaintiff was given selection grade vide order dated 14.10.1987, as such, the said ACR stood washed off. Vide order dated 10.4.1991 he was allowed to cross efficiency bar. He was allowed to be retained in service after he had attained age of 50 years in the year, 1985. There was hardly any justification to review that order and pass order retiring him prematurely. Plaintiff challenged his premature retirement from government service brought about vide its order dated 20.3.1991 saying that adverse remarks in the ACR for the period 3.1.1986 to 31.3.1986 recorded by Shri K.K.. Gupta on his work and conduct could not be taken into account because Shri K.K. Gupta was inimi-cally disposed towards him for the aforesaid reasons. Adverse remarks against him stood washed off when he was allowed to cross efficiency bar in the year 1991 and also when his reports both preceding and succeeding were good reports containing nothing adverse.

Defendants contested the suit. It was urged that it is the absolute right of the government to retire any govt. servant in public interest when the review is undertaken as to his service record with a view to retaining him in service beyond a particular age. Plaintiff was retired prematurely by the appropriate authority as his continuance in service was felt to be not in public interest. No stigma was attached to him. Premature retirement was not by way of punishment. Premature retirement was ordered on an overall view formed of the service rendered by him. On an overall view formed of the service rendered by him, the appropriate authority felt that his retention in service beyond 55 years of age was not in public interest. It was denied that Shri K.K. Gupta was inimically disposed towards him. He came to be posted under him for the first time on 3.1.1986. Prior to that he had never worked under him nor had ever come in his contact. He was fully competent to record ACR on his work and conduct as he had worked under him from 3.1.1986 to 13.7.1986 continuously. Order retiring the plaintiff prematurely is based on facts/record and is legal, bona fide and in public interest. Plaintiff was given personal hearing twice before his representation against the adverse remarks was rejected.

On the pleadings of the parties, the following issues were formed :-

Whether the order dated 20.3.1991 of premature retirement of the plaintiff is illegal, mala fide, arbitrary, capricious as alleged ? OPP

Whether the plaintiff is entitled for the declaration as prayed for? OPP

Whether the plaintiff is entitled for permanent injunction as prayed for ? OPP

Whether no notice u/s 80 CPC has been served ? OPD

Relief.

Vide order dated 10.11.1993, Subordinate Judge Second Class, Chandigarh dismissed the plaintiffs suit in view of her finding that he was retired prematurely in public interest on evaluating his service record including the adverse entries recorded by Shri K.K. Gupta. It was found that single entry doubting his integrity was good enough for compulsorily retir- ing an employee.

Plaintiff went in appeal which was allowed by Additional District Judge, Chandigarh vide order dated 2.6.1999. It was found that the order retiring him compulsorily from service was not in accordance with law. It was found that he was retired on the basis of one adverse entry in his ACR which was recorded mala fide by the reporting authority.

Aggrieved from the order of Additional District Judge, Chandigarh, dated 2.6.1999, State of Punjab has come up in appeal to this Court.

In this appeal, the following questions of law arise:-

Whether compulsory retirement of the plaintiff was prompted by public interest ?

Whether in the compulsory retirement of the plain-tiff any mala fides was involved?

Whether the power to retire a government servant by the Government is absolute, unbridled, unfettered and cannot be questioned before any Court of Saw ?

Whether the order retiring the plaintiff prematurely from service was in the nature of punishment?

Whether ACR in question could not have been taken into account while determining respondent''s suitability for being retained in service upto the normal age of superannuation?

It was submitted by the learned Deputy Advocate General, Punjab that the respondent-plaintiff was retired prematurely because on the overall survey of his service record, it was found that he should be prematurely retired and should not be taken upto the date when he is to superannuate. It was submitted that the government has absolute power to retire its servants prematurely on overall survey of their service record. It was submitted that if, on overall survey of the service record of a government servant when the question comes up for consideration whether he should or should not be taken beyond a particular age, the view is formed that he should be prematurely retired, the Court has no power to say that he should not have been retired from service prematurely and that he should have been taken beyond that age in service. It was submitted that the Court cannot substitute its own opinion for the opinion of the government that a particular, govt. servant should have been retained in service beyond a particular age. It is no doubt true that the government has the power to retire its servant prematurely on an overall survey of his service record. If on overall survey of his service record the govt. forms the opinion that the public interest demands that he should not be retained in service beyond that age, the govt. has the power to retire him prematurely. Court has no power to interfere with the order passed by the Court retiring its servant prematurely if the govt. has formed the opinion to retire him prematurely bona fide and in the formation of this opinion, no extraneous consideration came into play. In R.S. Gupta v. State of Haryana 1992 (3) SCT 103 : 1992 (3) RSJ 26, the petitioner was retired prematurely from govi. service in view of Rule 5.32(A)(C) read with Rule 3.26(d) Vol. I Pan I of the Punjab Civil Services Rules. His premature retirement was upheld by this Court. While doing so, it was observed that the petitioner''s record of service for the relevant period amply justified the impugned action. He has been assessed below average continuously for a number of years. Such persons cannot man responsible posts in Class I services. He was graded as average in the year 1984-85 and it was observed that he is rather unpredictable. As long as he handled only routine work, he continued to cooperate but when he was asked to write a chapter on decentralised planning for inclusion in the Seventh plan, he virtually revolted. Finally, he produced a note which was not worth the paper it was written on. He indulges in undesirable activity of making imaginary complaints against his officers. He can be considered as an average officer. In 1985-86, he was graded as below average and the adverse remark was "he is unco-operative. He is incompetent and an indisciplined officer. He filed baseless complaints against his officers in order to mislead the higher authorities and to cover up his shortcoming". In 1986-87, he was graded below average. In 1987-88, he was graded as below average and the adverse remarks was that he is, mentally unstable. On surveying his service record particularly for these years, he was found to be unfit to be retained in service.

There can be no manner of doubt that power to retire prematurely vests in the govt. but this power has to be exercised bonafide. If this power has been exercised bonafide, the Court cannot interfere with the order of premature retirement. Exercise of this power should be prompted by public interest. If exercise of this power has been prompted by public interest, the Court cannot interfere with the prematurely retiring a govt. servant. In R.S. Gupta v. State of Haryana 1992 (3) SCT 103 : 1992 (3) RSJ 26, the petitioner had earned average report with adverse remarks for the year 1984-85 followed by five below average reports punctuated by adverse remarks which detracted from his suitability for being taken beyond that age in service. Power to retire compulsorily is not absolute, unbridled and unfettered. It is open to the Court to examine whether power to retire has been exercise bona fide or mala fide. It was held in S. Ramachandra Raju v. State of Orissa 1994 (4) SCT 430 : 1994 (5) SLR 199 that though the order of compulsory retirement is not a punishment and the govt. employee is entitled to draw all retiral benefits including pension, the govt. must exercise its power only in the public interest to effectuate the efficiency of the service. The dead wood need to be removed to augment efficiency. Integrity in public service needs to be maintained. The exercise of power of compulsory retirement must not be a haunt on public servant but must act as a check and reasonable measure to ensure efficiency of service and free from corruption and incompetence. The entire service record or character rolls or confidential reports maintained would furnish the backdrop material for consideration by the govt. or the review committee or the appropriate authority. On consideration of the totality of the facts and circumstances alone, the govt. should form the opinion that the govt. officer need to be compulsorily retired from service. The entire service record more particularly the latest, would form the foundation for the opinion and furnish the base to exercise the power under the relevant rule to compulsorily retire a govt. officer. When an officer is reaching the age of compulsory retirement, he can neither seek alternative appointment nor meet the family burdens with the pension or other benefits he gets and thereby he would be subjected to great hardship and family would be greatly effected. Therefore, before exercising the power, the competent appropriate authority must weigh pros and cons and balance the public interest as against the individual interest. On total evaluation of the entire record of service if the government or the governmental authority forms the opinion that in the public interest the officer needs to be retired compulsorily. the Court may not interfere with the exercise of such bonafide exercise of power but the Court has power and duty to exercise the power of judicial review not as a Court of appeal but in its exercise of judicial review to consider whether the power has been properly exercised or is arbitrary or vitiated either by mala fide or actuated by extraneous consideration or arbitrariness retiring the government officer compulsorily from service. If the exercise of power by the govt, is shown to be an arbitrary exercise of power, the Court has the jurisdiction to set aside the order of compulsory retirement.

It is thus clear that the power to retire a govt. servant vesting in the government cannot be absolute, unbridled and unfettered. It can be questioned before a Court of law and the Court of law can quash the order of compulsory retirement of a govt. servant if it finds that the order retiring a govt. servant was passed arbitrarily or mala fide or was actuated by consideration other than public interest. It was submitted by the learned counsel for the respondent/plaintiff that he was retired compulsorily on the basis of the adverse report recorded by Shri K.K. Gupta, Superintending Engineer for the period 3.1.1986 to 13.7.1986. It was submitted that Shri K.K. Gupta was not competent to record any ACR on his work and conduct for the period 3.1.1986 to 31.3.1986 as under him the respondent''s period was less than 3 months and as per instructions of the govt. the reporting authority should have seen his work and conduct for a period of 3 months if he is to comment upon his work and conduct. It was submitted that for the period 1.4.1986 to 13.7.1986, the respondent was not exercising any financial power and therefore, there can be no question of his integrity being dubbed as doubtful during that period. It was submitted that Shri K.K. Gupta had not assessed his work and conduct objectively and therefore, the report recorded on his work and conduct by him should not have weighed with the govt. It was submitted that it cannot be believed that his efficiency became poor and the quality of his work became poor overnight and he exhibited lack of integrity only during the period 3.1.1986 to 13.7.1986. It was submitted that for this period the overall assessment was below average "C" for the period 3.1.1986 to 13.7.1986. He became Executive Engineer in the year 1981. It was submitted that after the year 1981, he became due to cross efficiency bar. He was allowed to cross efficiency bar. It was submitted that solitary adverse report should not have been the foundation to compulsorily retire him from service. The review committee should have considered the reports preceding and the reports succeeding the report for the period 3.1.1986 to 13.7-1986. In 1994(5) SLR 199 (supra), the Hon''ble Supreme Court observed that the exercise of power would be arbitrary where the order of compulsory retirement is passed on the basis of solitary adverse report without considering the reports succeeding or preceding the adverse report. It was held by the Hon''ble Supreme Court in M.S. Bindra Vs. Union of India and Others, that "judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or mala fide or if it is based on no evidence. The observation that principles of natural justice have no place in the context of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion the same can be obviated on the assumption that other materials alone need be looked into. To dunk an officer into the puddle of doubtful integrity, it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be enter-tainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity".

In Mahender Pal v. Administrator, National Capital Territory of Delhi and others 2000 (4) SCT 361 : 2000 (4) RSJ 120, a Division Bench of the Delhi High Court relying upon various judgments of the Hon''ble Supreme Court, came to the view that an order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. The order has to be passed on forming the opinion that it is in public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the govt. The 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. Order of compulsory retirement can be interfered with by the Court if it is satisfied that the order was passed mala fide or that it was passed on no evidence or that it was arbitrary in the sense that no person would form the requisite opinion on the given material. In short, if it is found to be a perverse order, the government or the review committee, as the case may be, shall have to consider the entire record of service before taking a deci- sion in the matter, of course, attaching more importance to record of particularly later years. The record to be so considered would include the entries in the confidential reports/character rolls both favourable and adverse if a govt. servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting. More so, if promotion is based upon merit/selection and not upon seniority. It was held in 2000(4) RSJ 120 (supra) that if an officer has been graded as "C" integrity doubtful without any material, such grading "C" integrity doubtful cannot be taken into account while determining his suitability for retention in service. By now, it is clear that power to retire a government servant by the government can be exercised only in public interest. If a government servant is retired prematurely on survey of his service record being undertaken at a particular age, such an order retiring him cannot be viewed as punitive. An order retiring one prematurely is subject to judicial review. Court can go into this question whether the order retiring one prematurely was passed in public interest or was actuated by mala fide or was arbitrary based on no material. In this case, ihe respondent has imputed mala fides to Shri K.K. Gupta who graded him "C" integrity doubtful for the period 3.1.1986 to 13.7.1986. It was submitted that Shri K.K. Gupta clubbed these two periods into one period mala fide. This report relates to two periods, some period going in 1985-86 and some period going in 1986-87. It was submitted that Shri K.K. Gupta was not competent to record remarks for the period 3.1.1986 to 31.3.1986 as he should have the occasion to watch his work and conduct in the minimum for a period of 3 months so that he could comment upon it. As the period of his control on the respondent was for a period less than 3 months in 1985-86, he should not have commented upon his work and conduct for the period 3.1.1986 to 31.3.1986. It was further submitted that he could not label him with doubtful integrity for the period 1.4.1986 to 14.7.1986 because during this period he had no financial power. It was further submitted that he had imputed mala fides to him. He should have come forward and refuted the mala fides imputed to him. He had not come forward to refute the mala fides imputed to him. It was further submitted that this was the solitary report which led to his premature retirement from service. It was submitted that there was no material to support the report of Shri K.K. Gupta on him for the period 3.1.1986 to 13.7.1986. In the report for the period 3.1.1986 to 13.7.1986 it was recorded that his integrity was poor. Some contractors complained against him to Shri K.K. Gupta for not passing bills. He was poor in planning and works and quarrelsome by nature and impervious in his behaviour. Respondent plaintiff filed representation against the adverse remarks recorded in his report by Shri K.K. Gupta which was rejected. It was submitted that he had filed representation running into 50 pages which was rejected by a cryptic order. His representation should have been dealt with and disposed of through a speaking order.

In this case, thus the reporting officer had given reason why he doubled his integrity. Plaintiff had never worked under Slid K.K. Gupta earlier. He had never come into his contact before his posting in Kandi Watershed Drainage Division on 3.1.1986. As such, there could be no malice or prejudice towards the respondent so far as Shri K.K. Gupta was concerned. It is also recorded in his ACR for the period 3.1.1986 to 14.7.1986 that some contractors met him 31.3.1986 with the complaint that although their works were completed 2-3 months back, plaintiff procrastinated payments of their bills. They had been waiting for the plaintiff since morning and he had not come to the office on 31.3.1986 the last working day of the financial year. Orders were issued by the Superintendent Engineer to the Executive Engineer with the instruction to the Divisional Accountant to return the bills to SDO for release of payment in respect of such bills where no objection had been raised by the Executive Engineer without pre-check by Executive Engineer as otherwise the budget would lapse. Out of those 10 bills SDO released payment of 9 bills. Payment of 10th bill was not released because the Executive Engineer had objected that the work had been done on unapproved alignment. An inquiry conducted by an independent Executive Engineer revealed that the work had been carried out on approved alignment. It is thus clear that it is not that the report recorded by Shri K.K. Gupta was without any basis. He had supported his report with the necessary material.

Grant of selection grade did not wash off the sting as selection grade was granted with effect from 15.4.1980 though vide order dated 5.10.1987. For the grant of selection grade, his record upto 15.4.1980 was to be taken into account. Similarly, the grant of efficiency bar also did not take out the sting because he was permitted to cross efficiency bar with effect from 1.4.1984 though vide order dated 10.4.1991. For the grant of selection grade and efficiency bar, report for the period 3.1.1986 to 13.7.1986 was not relevant as he was given selection grade with effect from 15.4.1980. He was allowed to cross efficiency bar as Executive Engineer with effect from 1.4.1984. For the grant of selection grade, his service record upto 15.4.1980 was relevant. For the grant of efficiency bar, his record upto 1.4.1984 was relevant. Why cannot single adverse entry of doubtful integrity be held to be good enough for an order of compulsory retirement? In Brij Mohan Singh Chopra v. State of Punjab AIR 1987 SC 140, the Hon''ble Supreme Court held that even a single entry of adverse remarks is enough for an order of compulsory retirement. ACR for the period 3.1.1986 to 13.7.1986 could well have been taken into account while determining his suitability for being retained in service.

Order retiring one from service compulsorily cannot be viewed as punitive as when the review of his service record is undertaken for determining his suitability for retention in service beyond a particular age, he is found to have been without doubtful integrity during the past 5 years preceding the date when his suitability for retention in service beyond a particular age conies up for consideration.

For the reasons given above, I am of the opinion that on judicial scrutiny of the order retiring the plaintiff from service prematurely, it cannot be said that the power to retire him prematurely was exercised by the government mala fide or on no material. There was material before Shri K.K. Gupta then Superintending Engineer on the basis of which he graded him as an officer of doubtful integrity. So, this appeal succeeds and is allowed. Judgement and decree passed by learned Additional District Judge, Chandigarh are set aside and those passed by the learned Subordinate Judge Second Class, Chandigarh are restored. In consequence, the respondent-plaintiffs suit is dismissed. No order as to costs.

Appeal allowed.