Sujan Singh vs State of Haryana and Others

Tejinder Singh Dhindsa, J.—The petitioner who was serving as Assistant Sub Inspector of Police has filed the instant writ petition impugning the order dated 02.04.2009 (Annexure P-4) passed by the Commissioner of Police, Gurgaon, whereby he has been compulsorily retired upon attaining the age of 55 years. Brief facts of the case are that the petitioner was appointed as Constable in the Haryana Police on 19.12.1979. He thereafter earned promotions as Head Constable in the year 1998 and as Assistant Sub Inspector in 2004. The date of birth of the petitioner is 23.03.1954 and in the normal course, he was to retire on 31.03.2012 upon attaining the age of superannuation.

In the year 2007, the petitioner faced a departmental inquiry on the allegation that he had taken an amount of Rs. 3000/- from Jahid for showing undue favour and for not taking action against him in connection with the theft of a gas cylinder. In the departmental inquiry, the Inquiry Officer returned findings against the petitioner. The Punishing Authority based upon the findings of the Inquiry Officer passed an order dated 03.07.2007 imposing the punishment of stoppage of two annual increments upon the petitioner. Such order of punishment was challenged by the petitioner by filing a Civil Suit bearing No. 53/2008 on 16.07.2008. During the pendency of the suit, the Commissioner of Police, Gurgaon issued a notice dated 22.12.2008 (Annexure P-1) proposing to retire the petitioner from service upon attaining the age of 55 years by invoking the provisions of Rule 3.26(d) of the Punjab Civil Services Rules, Volume I, Part I and Rule 9.5(c) of the Punjab Police Rules. The petitioner preferred CWP No. 827 of 2009 raising a challenge to the notice dated 22.12.2008. Such writ petition was disposed of vide order dated 16.03.2009 (Annexure P-2) with a direction to the Director General of Police, Haryana to take a decision as regards the retention of the petitioner or otherwise. It has been pleaded that the petitioner received a copy of the order dated 31.03.2009 (Annexure P-3) passed by the Director General of Police, Haryana, which was in response to a representation filed by the petitioner against the show cause notice issued to him, whereby his claim to continue in service beyond the age of 55 years was rejected by a non-speaking and cryptic order. It has further been pleaded that thereafter the Commissioner of Police, Gurgaon has passed the impugned order dated 02.04.2009 (Annexure P-4) retiring the petitioner at the age of 55 years thereby giving the effect to the notice dated 22.12.2008 (Annexure P-1).

Learned counsel appearing for the petitioner would argue that the petitioner had rendered more than 30 years service and had never been communicated any adverse remarks. Counsel would even refer to the judgment dated 27.10.2009 (Annexure P-5) passed by the Civil Judge (Senior Division), Gurgaon, whereby the civil suit filed by the petitioner had been decreed and the order dated 18.07.2007 imposing the punishment of stoppage of two annual increments without cumulative effect had been declared as null and void. It has accordingly been contended that the only blemish as regards the service record of the petitioner stood washed out and as such, there was no basis for having compulsory retired the petitioner. Counsel has also argued that the impugned order cannot be said to have been passed in pubic interest because the petitioner possessed sufficiently good service record i.e. more than 70% good ACRs for the last 10 years of service and that his integrity had never been doubted. The submission raised on behalf of the petitioner that the decision taken by respondent No. 3 to compulsory retire the petitioner would be in violation of the State Government Instructions dated 19.11.1991 (Annexure P-6), which had been issued on the subject of pre-mature/compulsory retirement on attaining the age of 50/55 years. Counsel has further argued that the impugned order dated 02.04.2009 (Annexure P-4) is punitive in nature as the discretion vested in the Competent Authority has not been fairly exercised as the petitioner cannot be construed to fall in the category of deadwood whose continuance in service would not have been in public interest. Reliance has been placed upon a Division Bench judgment of this Court in State of Haryana & others v. Mohinder Singh 2012 (3) SCT 144.

Counsel appearing for the State would refer to the joint written statement filed on behalf of respondents No. 1 to 4 to State that the case of the petitioner for extension in service beyond the age of 55 years has been considered in the light of Instructions issued by the State Government dated 14.03.2006 and 17.02.2009 (Annexures R-I & R-II) and in terms thereof, any official, who has been awarded punishment and which adversely reflects on the integrity is not to be allowed to continue in service beyond the age of 55 years. Even though, it has been conceded that the punishment of stoppage of two annual increments without cumulative effect vide order dated 18.07.2007 has been set aside by the Civil Judge (Senior Division), Gurgaon vide judgment dated 27.10.2009, yet this Court has been apprised that the petitioner was also awarded a penalty of censure for indulging in dishonest dealings and exhibiting departmental misconduct during the course of investigation of FIR No. 340 dated 01.09.2005 u/s 408 of the Indian Penal Code registered at Police Station Udyog Vihar, Gurgaon vide order dated 19.03.2007. That apart, yet another punishment of censure was imposed vide order dated 11.06.2007, when the petitioner was found sleeping in the Police Station instead of performing his duty. Accordingly, it has been contended that the impugned order has been passed in accordance with Rule 3.26(d) of the Punjab Civil Service Rules, Volume I, Part I and Rule 9.18(i)(c) of the Punjab Police Rules. Learned State counsel would argue that the subjected satisfaction of the Competent Authority would not be open for interference by this Court as if it was entertaining an appeal against the order of compulsory retirement.

Counsel for the parties have been heard at length.

The principles governing the compulsory retirement are by now well settled. The Hon''ble Supreme Court in Bankuth Nath Doss & another v. Chief District Medical Officer, Baripada & another, 1992 (2) S.C.T. 92 : AIR 1992 SC 1020 had crystallized the principles as under:

i. An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.

ii. The order has to be passed by the government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government.

iii. 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. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) malafide or (b) that it is based on no evidence or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, in short, if it is found to be a perverse order.

iv. The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. The record to be considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.

v. An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it un-communicated adverse remarks were also taken into consideration. That circumstances by itself cannot be a basis for interference.

The Hon''ble Supreme Court had held that an order retiring an employee on completion of 55 years of age is not passed as a punishment and it does not imply any stigma. The Competent Authority has the discretion to retire an employee after he attains a particular age or completes a particular period of service. The High Court while examining an order of compulsory retirement is not to act as an Appellate Court but would interfere only after the order is vitiated by malafides or is passed on no evidence or is arbitrary to the extent that no reasonable person could form the requisite opinion to compulsory retire on the basis of the given material.

The scope of judicial scrutiny in matters of compulsory retirement came up for consideration before the Hon''ble Supreme Court in National Aviation Company of India Ltd. Vs. S.M.K. Khan, and it was observed in the following terms:

When an order of compulsory retirement purports to be one under rule/regulation providing for such premature retirement, the proper approach of the Court would be to consider whether the order is sustainable with reference to the requirements of the relevant rule, rather than examining whether the order could also be construed as a punishment for misconduct.

The validity of the impugned order of compulsory retirement of the petitioner would have to be examined in the light of such settled principles. The respondent-department has considered the entire service record of the petitioner. The petitioner has been imposed penalties of censure, one of which reflected on his integrity. The other punishment was for inefficiency/negligence. The petitioner has not raised any allegation of malafides or as regards the competency of the authority who has passed the impugned order. The impugned order cannot be termed as perverse as a view has been formed by the Competent Authority on the basis and backdrop of material relating to unsatisfactory service. It is not a case of an order of compulsory retirement having been passed without any material on record. This Court cannot sit in appeal over the judgment of the Competent Authority and cannot also substitute its own view with that of the Competent Authority. The respondent-department has adopted a course which was legally permissible under the service rules and as such, the impugned order of compulsory retirement does not call for any interference.

The reliance placed upon the Division Bench judgment in Mohinder Singh''s case (supra) would not enure to the benefit of the petitioner as the facts of that case are clearly distinguishable. In the case of Mohinder Singh, the impugned order of premature retirement had referred to ACRs of four years i.e. 1999, 2006, 2007 and 2008, which were said to be not good. However, the LPA Bench noticed that the ACRs proceeding 10 years from the date of passing of order of premature retirement were all good and as such, there was no basis for having passed the order of premature retirement. Still further, in the case of Mohinder Singh, he had suffered the punishment of censure as also stoppage of one increment without cumulative effect and thereafter, had earned promotions by way of selection and accordingly, a view had been taken that even such minor penalties had lost their sting. For the reasons recorded above, I find that there is no merit in the present writ petition and the same is, accordingly, dismissed.