State of Punjab vs Sarup Singh

J.S. Khehar, J.—The respondent-plaintiff was born oh 3.1.1935. He was inducted into the Police Department as Constable as on 1.8.1957. Having rendered more than 30 years of service, he was issued notice dated 28.4.1987 under Rule 3(i)(a) of the Punjab Civil Service (Pre-mature Retirement) Rules, 1975 (hereinafter referred to as the Pre-mature Retirement Rules) giving him three months notice of retirement from service. Thereafter, vide the order dated 10.8.1987, the respondent-plaintiff was prematurely retired w.e.f. 13.8.1987. The aforesaid orders dated 28.4.1987 and 10.8.1987 were impugned by the respondent-plaintiff by filing a civil suit at Faridkot. The Trial Court dismissed the suit vide order dated 28.5.1990. The respondent-plaintiff preferred an appeal before the Additional District Judge, Faridkot. The appeal was accepted on 24.2.1994. Dissatisfied with the order of the lower appellate Court, the authorities have approached this Court to impugn the order of the lower appellate Court dated 24.2.1994.

Primarily, the claim of the parties is based on the provision of Rule 3(i)(a) of the Pre-mature Retirement Rules. The aforesaid rule is being extracted herein for facility of reference :-

"3. Premature Retirement :- (1)(a) The appropriate authority shall, if it is of the opinion that it is in public interest to do so, have the absolute right, by giving an employee prior notice in writing, to retire that employee on the date on which he completes twenty-five years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice."

The first contention of the learned counsel for the appellant is that the lower appellate court wrongly came to the conclusion that it was incumbent for the authorities to pay to the respondent-plaintiff emoluments due to him for the period of three months along-with the notice issued to him on 28.4.1987. The question of paying salary in lieu of notice would only arise if the employee''s notice period is curtailed from the mandatory period of three months envisaged under Rule 3(i)(b) of the Premature Retirement Rules. Since in the instant case, the respondent-plaintiff was given notice for a period of three months, there is no question of making any advance payment to him either along-with the notice dated 28.4.1987 or with the final order dated 10.8.1987.

In fact, a perusal of the aforesaid provision specifically reveals "the employee shall be entitled to claim a sum equivalent to the amount of his pay and allowances". Thus, it is obvious that the mandate of the rules does not envisages payment of any amount, alongwith either the notice or the order of pre-mature retirement. The employee under the mandate of the aforesaid rule is allowed to make any claim in terms of the aforesaid provision.

The next claim of the learned counsel for the respondent-plaintiff is that he is entitled to a sum equivalent to the amount of his pay and allowances, at the same rate at which he was drawing immediately before the date of retirement. In this behalf, learned counsel for the appellant-defendant has pointed out that it is the conceded case of the appellants that the respondent was paid emoluments by treating the three months notice period as extraordinary leave. In this behalf it is pointed out that the emoluments payable as extraordinary leave were less than the salary due to the respondent-plaintiff as envisaged under Rule 3(i)(b) of the Pre-mature Retirement Rules. So far as the aforesaid submission is concerned, the same is controverted by the learned counsel for the appellants by submitting that the respondent-plaintiff had continuously absented himself from 21.9.1985 to 12.8.1987. In this behalf, it is pointed out that for the period from 21.9.1985 to 20.9.1986, the petitioner had been granted leave of the kind due, whereas, from 21.9.1986 to 12.8.1987 he was absent for a total number of 326 days without leave. Be that as it may. Even for the period from 21.9.1986 to 12.8.1987, he was granted extra-ordinary leave under Rule 8.119(b) of the Punjab Civil Service Rules Vol. I, Part-I by taking a lenient view. He was, accordingly, paid emoluments which were payable to him on the basis of extraordinary leave granted to him. In my considered view, the emoluments payable to the respondent-plaintiff in terms of the proviso to Rule 3(i)(b) of the Pre-mature Retirement Rules were clearly released to him by making payment to him in terms of the sanctioned extraordinary leave even for the period during which he was under notice for premature retirement.

Learned counsel for the respondent-plaintiff vehemently submitted that Rule 3(i) of the Pre-mature Retirement Rules envisages that an employee should be intimated the exact date on which he would be retired from service. Learned counsel in this behalf drew the pointed attention of this Court to the notice- dated 28.4.1987. The same is being extracted therein for the facility of reference :-

"Whereas, you, Sh. Sarup Singh, DSP No. PAP/179, have attained the age of 50 years on 2.1.1985.

And whereas on consideration of your case, the Governor of Punjab is ofthe opinion that it is in public interest to retire you from service.

Now, therefore, in pursuance of Rule 3(i)(a) of the Punjab Civil Service (Pre-mature Retirement) Rules, 1975, the Governor of Punjab is pleased to hereby give you three months notice of retirement from service and further order that you shall retire from service on the expiry of three calendar months from the date of service of the notice on you."

On the basis of the aforesaid, learned counsel for the respondent-plaintiff submits that since no expressed date with effect from which he would stand retired was indicated in the notice for pre-mature retirement, the same cannot be considered to be in terms of the mandate of the Pre-mature Retirement Rules, extracted above. I am afraid that the aforesaid submission is clearly fallacious. A perusal'' of the notice dated 28.4.1987 reveals that the respondent-plaintiff was informed that he would stand retired on the expiry of three months period from the date of service of the notice. It is, therefore, obvious that when the notice came to be served upon him, he was aware of the exact date on which he would be retired. In fact, when the final order of retirement dated 10.8.1987 was passed, it was also passed after taking into consideration the date on which the notice dated 28.4.1987 was served upon the respondent-plaintiff.

The lower appellate Court came to the conclusion that the order of pre- mature retirement passed against the respondent-plaintiff was a penal order. The aforesaid conclusion was based on the fact that the respondent-plaintiff had absented himself from duty continuously from 21.9.1985 to 12.8.1987. In case penal action was to be taken against the respondent-plaintiff, it could have been taken only after holding a regular departmental enquiry against him, and in case he was found guilty in the enquiry, he could be punished accordingly. The aforesaid conclusion is rebutted by the learned counsel for the appellants-defendant by relying upon the written statement filed on behalf of the appellant-defendant in response to the averments made by the respondent-plaintiff in his plaint. In this behalf, pointed attention of this Court was invited to the averments made in paragraph 4 of the written statement. A perusal of the averments made therein indicates that the respondent plaintiff was found to be medically unfit for field duty by the Medical Board in September, 1985. Even prior thereto, he had been availing of leave since 1982 as he was unable to perform his duties. It was pointed out that the respondent-plaintiff had been granted one year leave from 21.9.1985 to 20.9.1986, so that he could get himself medically treated. It is further clarified that after the expiry of one year, the respondent-plaintiff neither reported for duty nor produced any medical certificate. Therefore, it was concluded by the authorities that the respondent-plaintiff was medically unfit to discharge his duties. Besides averments made in paragraph 4 of the written statement, learned counsel for the appellants has drawn the pointed attention of this Court to an order dated 13.9.1988, which is available on the record of the Trial Court as Ex.D-A.

A perusal of the aforesaid order reveals that the petitioner remained absent from 3.3.1982 to 31.5.1982 i.e. for a period of 90 days. Thereafter, he remained absent from 1.8.1982 to 9.9.1983 i.e. for a total period of 405 days. From 28.11.1983, he remained absent upto 8.12.1983 i.e. for a period of 11 days and, (hereafter he remained absent from 21.9.1985 till the date of his premature retirement. Thus, in all he had remained absent for a period of 1197 days from 3.3.1982 till the date of. his retirement. As a matter of compassion, his aforesaid absence was regularised by granting him either earned leave or half pay leave or extraordinary leave as per his entitlement by the order, Ex. D-4. Ex.D-4 further repeals that for the last period of absence from 21.9.1986 to 12.8.1987 totalling 326 days the respondent-plaintiff had not even applied for leave. It is, thus, evident that for almost one year he had remained absent without leave.

To bring home the conclusions drawn by the authorities that the respondent-plaintiff was medically unfit to discharge his duties, reliance has been placed on Ex. P.14. Since, both the parties have strongly relied upon Ex. P-14, it is appropriate to extract the same herein :-

"Certified that Sh. Sarup Singh has been medically examined by the Standing Medical Board held on 7.9.84 and has been declared medically fit. The Original Medical Certificate of Medical fitness is being sent to Secretary/Director, Health and Family Welfare, Pb. Chandigarh for onward transmission.

He is a case of Cranial Dystoma.He is not fit for field duty. He may be given office duty and be got re-examined after one year.

Sd/-

Preside nt

Standing Medical Board

Civil Surgeon, Paliala."

While learned counsel for the respondem-plaintiff vehemently submits (on the basis of the "afore said certificate issued by the Standing Medical Board) that the respondent-plaintiff was declared to be medically fit, learned counsel for the appellant-defendant submits that it was specifically evident therefrom that he was not fit for field duty and that he may be given office duty.

After the examination of the respondent-plaintiff by the Medical Board as indicated above, the respondent-plaintiff availed of one year''s leave from 21.9.1985 to 20.9.1986. It is evident from the averments made in paragraph 4 of the written statement that the aforesaid leave was granted to the respondent-plaintiff to get himself medically treated. Despite availing of the period of one year, it was concluded that it was on account of his medical impairment that he did not report for duty on the expiry of the said leave on 21.9.1986 and remained absent from 21.9.1986 to 12.8.1987 i.e. till the date of pre-mature retirement.

During the course of proceedings before the trial Court, the respondent- plaintiff was exactly aware of the reasons which had weighed with the authorities in ordering his pre-mature retirement. No medical evidence has been brought to my notice which had been produced by the respondent-plaintiff to rebut the submission on the authorities. There is nothing on record to show that the absence of me respondent-plaintiff from 21.9.1985 to 20.9.1986 and therafter from 21.9.1986 to 12.8.1987 was justified. There is no material whatsoever on the record of the case on the basis of which the lower appellate Court held that the respondent-plaintiff had been prematurely retired as a matter of punishment for absence from duty.

Last of all, learned counsel for the respondent-plaintiff states that the action taken against him under the Pre-mature Retirement Rules was wholly without jurisdiction in view of the provisions of Rule 9.9 of the Punjab Police Rules, 1934. Rule 9.9 is being extracted herein for facility of reference.

"9.9. Invalid Pensions :- An invalid pension proportionate to the length of service is awarded to a police officer who by bodily or mental infirmity is permanently incapacitated for further service in the police. If the incapacity is directly due to irregular or intemperate habits, no pension can be granted. If it has not been directly caused by such habits but has been accelerated or aggravated by them, it will be for the authority by whom the pension may be granted to decide what reduction should be made on this account (Articles 441, 454 and 474 Civil Service Regulations). If the length of the invalid''s service is less than ten years a gratuity only will be admissible. (Article 474(a), Civil Service Regulations). Superintendents are required to be on their guard against endeavours to retire on invalid pension by officers who are capable of serving longer."

It is undoubtedly true that the respondent-plaintiff could have been retired on account of medical disability under Rule 9.9 (extracted above). However, it would be relevant to mention here that under the Premature Retirement Rules, relied upon by the appellants to pass the order of pre-mature retirement, it is specifically envisaged (in Rule 5 thereof) that the provisions of the Pre- mature Retirement Rules have an over-riding effect notwithstanding anything inconsistent therewith contained in any other rules for the time being in force. Rule 9.9 of the Punjab Police Rules, 1934 relied upon by the respondent-plaintiff is not inconsistent with the Pre-mature Retirement Rules, inasmuch as the Premature Retirement Rules do not envisage or specify the circumstances on the basis of which the order of pre-mature retirement can be passed. The touch-stone under the Pre-mature Retirement Rules is public interest. It is evident that the impugned order was issued in view of the fact that the respondent-plaintiff was unable to discharge his duties on account of the medical disabilities suffered by him. There can, therefore, be no doubt that the impugned order was indeed passed in public interest as envisaged under the rules.

In view of the conclusions drawn above, the order of the Additional District Judge, Faridkot dated 24.2.1994 is set aside. The notice of pre- mature retirement dated 28.4.1987 and the order of fire-mature retirement dated 10.8.1987 are upheld being valid in accordance with law. The suit is accordingly dismissed. Appeal stands allowed. These shall, however, be no order as to costs.

Appeal allowed.