Tehal Singh vs State of Punjab and Others

N.K. Kapoor, J.—This is plaintiff appeal against the judgment of the Additional District Judge, whereby judgment and decree of the trial Court was reversed, thereby dismissing the suit filed by him.

Briefly put, plaintiff an Assistant Sub Inspector posted in District Gurdaspur, was prematurely retired vide order, dated 25th April, 1985, passed by the Senior Superintendent of Police, Gurdaspur. Appeal filed by him too was rejected by the Deputy Inspector General of Police, Jullundhar Range, on 11th July 1985. To get rid of the order of premature retirement, he filed a suit for declaration that the same is illegal, null and void and consequently he is entitled to all service benefits pay and other emoluments.

The defendants put in appearance filed written statement and controverted material averments made by the plaintiff. The defendants justified the correctness of the impugned order and maintained that the same were passed in accordance with the rules. On the pleadings of the parties, following issues were framed:

Whether the plaintiff is entitled to the declaration prayed for?

Whether the impugned order dated 11.7.85 is null and void?

Whether the plaintiff has got cause of action?

Relief.

The trial Court examined Issue Nos. 1 and 2 jointly and returned a finding that since the impugned order was passed without issuing any notice to the plaintiff, nor an inquiry was held, so the same violates the principle of natural justice. Resultantly the suit of the plaintiff was decreed as prayed for.

Once again the lower appellate Court heard the parties on facts as well as in law. The lower appellate Court relying upon Rule 3 of the Punjab Civil Services Premature Retirement Rules, 1975, reached the conclusion that an appropriate authority is not required to conduct any inquiry or give any show cause notice to the employee concerned, nor even the sanction of the State Government is required. Examining the service record of the plaintiff the Court came to the conclusion that the same is generally below average. In fact as per the reporting officer, for the period from 1.4.1979 to 31.3.1980, the plaintiffs honesty was termed doubtful. It was further remarked in the annual confidential report that he lacked moral courage and need to be closely watched regarding his reliability. Not only this twice he had been placed under suspension for having been found under the influence of liquor. Even subsequently his superiors found his work and conduct to be just average. In view of such like service record, the State Government thought of prematurely retiring the plaintiff which cannot be termed as violative of any rules. Resultantly, the appeal was accepted while setting aside the judgment and decree of the trial Court.

Before me, the learned counsel for the appellant with the a view to seek reversal of the judgment and decree of the Additional District Judge, has laid much emphasis that the plaintiff having crossed the efficiency bar, the earlier adverse remarks become inconsequential and could not he taken into consideration while passing the impugned order. In addition there to the order of premature retirement could be passed by the State Government alone whereas in the instant case, the same has been passed by the Senior Superintendent of Police, and in this way the impugned order is against the mandate of the rules and thus unsustainable in law. In support of his above contention, the counsel referred to the judgments in Punjab State through Collector Hoshiarpur v. Hakam Singh 1988(3) SLR 421; Darshan Singh Deputy Superintendent of Police v. The State of Punjab and Ors. 1989(1) RSJ 519; Baidyanath Mahapatra v. State of Orissa and Anr. 1989(2) RSJ 519; and Faquir Chand Aggarwal v. The State of Haryana 1993(2) RSJ 507.

The judgment in Hakam Singh''s case (supra) was a short one, bereft of material facts. The Court merely proceeded on the promise that concurrent findings had been recorded by the Courts below and so, the same did not call for interference in the Regular Second Appeal. In Baidyanath Mahapatra''s case (supra), the apex Court ignored the adverse entries which related to the remote past. It was further observed that adverse entries for the years 1969-70, 1970-71, 1972-73 and 1975-76 were communicated in the year 1978, whereas the instructions provided that the adverse entries must be communicated by December of each year. Thus, there being delay in communicating the adverse entries, the same were ignored. In Darshan Singh''s case (supra) the Court came to the conclusion that there was no material on the record, on the basis of which it could be said that the premature retirement was necessary in public interest. Similarly, in Faquir Chand''s case (supra) the petitioner was prematurely retired. He had only one report of average, which according to the Division Bench was not sufficient to prematurely retire the petitioner.

None of the above judgments has any material bearing on the point in dispute. As has come on record and noticed to, by the Additional District Judge, the plaintiffs over-all service record has been below average. His honesty was doubted for the period from 1.4.1979 to 31.3.1980. Subsequently he was twice placed under suspension. Even, in his overall assessment, he was not found to be reliable officer. Keeping his service record in view, the Government thought of prematurely retiring the petitioner, fully complying with Rule 3(1) (a) of the Punjab Civil Service Premature Retirement Rules 1975. This rule does not contemplate any inquiry or show cause notice to be issued to the employee concerned. This precise proposition as to whether crossing of the efficiency bar by a Government servant has the effect of washing away of previous adverse entries in his service record, was the subject matter of adjudication before the Full Bench, in Punjab State and Others Vs. Kulwantbir Singh, , exhaustively dealing with the various judicial pronouncements of this Court as well as of the apex Court the Court came to the following conclusion;

"38, The principles that thus emerge are:-

"(i) As different consequences flow from crossing of the efficiency bar, retention in service or premature retirement after the requisite qualifying period and promotion considerations applicable for their decision have inevitably to be relevant in their context, thus separate and distinct;

(ii) The previous history of a Government servant or to put it in different words his past adverse remarks are not to be completely ignored once he is allowed to cross the efficiency bar or to continue in service after the requisite qualifying service;

(iii) If, there are some unfavourable remarks pertaining to such government servant after the crossing of the efficiency bar, his continuance in service after the qualifying period or promotion as the case may be, past events may be looked into to assess his present conduct.

(iv) On the other hand, the adverse remarks prior to promotion to a higher post particularly where it is based upon merit and not seniority alone would lose their significance and such promotion would take away the sting of the adverse remarks against the Government servant concerned.

(v) The entire record of service of the Government servant concerned with greater emphasis and importance being given to his record during the later years, must be taken into consideration while deciding the matter pertaining to his retention in service or premature retirement after the requisite qualifying service;

(vi) The adverse entries against the Government servant prior to the crossing of the efficiency bar and indeed the crossing of the efficiency bar itself would form part of the record of service which must be considered in dealing with retention in service or premature retirement as the case only be."

One cannot lose sight of the fact that the plaintiff had an adverse entry of integrity doubtful." i.e. for the year 1979-80 which as per the Government instruction usually affects the service career for about 10 years. Keeping this and other service record of the plaintiff in view, the Government thought of prematurely retiring the plaintiff.

As regards the objection that the order of premature retirement had not been passed by the competent authority i.e. the State Government the same too is without any substance. This precise objection was taken in State of Punjab and Others Vs. Manohar Lal, , and the apex Court held that Senior Superintendent of Police is competent authority to make appointment to non gazetted ranks of Sub Inspectors etc, and so the Senior Superintendent of Police is legally competent to pass order of compulsory retirement in public interest after his attaining 50 years of age under Rule 3(1)(a) of the Punjab Civil Services Premature Retirement Rules, 1975.

Thus I find no merit in this appeal, and consequently dismiss the same but with no order as to costs.