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RAM KISHAN, EX

High Court of Punjab and Haryana, Chandigarh

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Ram Kishan, Ex-Sub Inspector v. State of Haryana & Ors - CWP-3256-1988 [2006] RD-P&H 3903 (10 July 2006)

CWP No.3256 of 1988 [1]

THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

C.W.P.No.3256 of 1988

Date of Decision: 10.05.2006

Ram Kishan, Ex-Sub Inspector ........Petitioner v.

State of Haryana and others .......Respondents CORAM: HON'BLE MR.JUSTICE P.S.PATWALIA
***

Present: Mr.Subhash Ahuja, Advocate

for the petitioner.

Mr.Suresh Monga, Sr.DAG, Haryana

for the respondents.

***

P.S.PATWALIA, J.

Petitioner Ram Kishan has filed the present writ petition challenging the order by which he had been retired from service on attaining the age of 55 years and the orders by which his representations against the adverse remarks recorded in the Annual Confidential Reports for the period 2.7.1979 to 31.3.1980, 11.7.1983 to 31.3.1984 and 1.4.1984 to 4.1.1985 have been rejected. The facts leading to the filing of this writ petition are as hereunder:- Petitioner was selected as a Constable in Ambala District on 3.5.1951. During the course of his service, he passed various promotion courses and secured promotions to the posts of Head Constable, Assistant Sub Inspector and ultimately as Sub Inspector in the year 1974.

While working as a Sub Inspector he was issued a notice dated CWP No.3256 of 1988 [2]

3.3.1987 of compulsory retirement by the Superintendent of Police, Kurukshetra, whereby he was informed that he would stand retired on the expiry of three months from the date of receipt of notice. It was stated that the petitioner would be attaining the age of 55 years on 5.2.1987 but by a subsequent order dated 24.4.1987, the date of attaining the age of 55 years was corrected to read as 2.5.1987.

Petitioner further states that he was conveyed adverse remarks for the period 2.7.1979 to 31.3.1980, 11.7.1984 to 31.3.1984 and 1.4.1984 to 4.1.1985 in which his integrity was questioned. The petitioner duly made representations against these remarks which were rejected by the State and the rejection was conveyed to the petitioner vide memos dated 17.4.1986, 23.9.1986 and 25.7.1986 respectively. Petitioner still further states that so far as remarks for the year 1979- 80 are concerned, they had initially been expunged by the Deputy Inspector of Police vide order dated 17.6.1982. However, subsequently that order was reversed by the Director General of Police, as a result of which the remarks were duly conveyed to the petitioner. The petitioner had then filed a representation against the said remarks on 30.6.1984 which was ultimately rejected on 17.4.1984.

Petitioner has filed this writ petition challenging the order by which he had been prematurely retired as also the orders by which his representations have been rejected.

The State of Haryana has filed a written statement contesting the petition. In the written statement, petitioner's service record from 1.4.1976 upto 31.3.1986 has been detailed. The same is extracted hereunder:- "1. 1.4.76 to 30.9.76 Average

2.10.76 to 31.3.77 Average

1.4.77 to 30.6.77 Less time

2. 1.7.77 to 30.6.77 No complain. An average Officer 1.7.77 to 31.3.78 His working was satisfactory.

3. 1.4.78 to 31.3.79 Hard and good worker. CWP No.3256 of 1988 [3]

4. 1.4.79 to 2.7.79 Strong and intelligent officer. 2.7.79 to 31.3.80 This officer takes shelter of political help his reputation was rotten and

actions questionable. He tends to be

indisciplined and shirker, and he did

very little work while posted as

Incharge CIA staff, I agree with the

report of the S.P. As I had visited

Kaithal & P.S. & had the opportunity of

assessing the work and reputation of

this official.

Sd/- DIG/AR.

Honesty doubtful. Had been keeping

relations with bad elements. Sold the

raw material of Police Station building

(old) and kept the money with him.

During checking one Vespa Scooter

found as unclaimed which was not

taken in police custody and used

himself un-authorisedly. Takes shelter

of political help and do work under their pressure. Disobey the orders. During his posting as S.H.O. City Kaithal there was an increase in theft cases and in

'Gundagardi'.

Sd/-SP/KKR.

1.4.80 to 14.5.80 Not available

5. 15.5.80 to 3.2.81 Satisfactory 4.2.81 to 31.3.81 Less period

6. 1.4.81 to 31.3.82 Can look after medium police Station efficiently.

7. 1.4.82 to 2.2.83 A good investigator 2.2.83 to 31.3.83 Less period

8. 1.4.83 to 10.7.83 Knows investigation 11.7.83 to 31.3.84 As and when he is entrusted any investigation of cases he always try to

take the case in such a way so that he

could get illegal gratification D.M.

KKR has also certified the above report

and remarked that complaints received

regarding harassing the public.

9. 1.4.84 to 4.1.85 Integrity :- There was a reputation of collecting money from public during the

investigation of cases.

General remarks: His general reputation

about the investigation of cases is that he molds the investigation according to

his own interest.

10. 1.4.85 to 6.3.86 Knows police work and good investigator.

CWP No.3256 of 1988 [4]

6.3.86 to 31.3.86 Less perid."

Besides the above it has also been stated that petitioner's integrity for the year 1970-71 and 1975-76 was doubtful. A criminal case under the Prevention of Corruption Act was registered against him in April, 1971 in which the petitioner had been acquitted. It has further been stated that on 30.8.1979 he was censured for his failure to curb Satta Gambling and forward contract while posted as S.H.O., Police Station City Kaithal. He was again censured for exhibiting slackness in writing case diaries on 10.3.1987. It has further been stated that the representations of the petitioner against the adverse remarks wherein his integrity had been doubted were considered but were rejected.

Petitioner has filed a replication to the written statement. In the replication, the petitioner has primarily contended that the adverse remarks for the period 1979-80 were as a result of bias of one Shri R.L.Kalson.

I have heard Mr.Subhash Ahuja, learned counsel appearing for the petitioner and Mr.Suresh Monga, Senior Deputy Advocate General, Haryana on behalf of the respondents and have gone through the record.

Mr.Subhash Ahuja, learned counsel for the petitioner contended that the State of Haryana has circulated instructions dated 22.11.1974 as per which though it has been stated that in case of an employee whose integrity is suspected at any stage of his career should not be retained in service beyond the age of 55 years, yet in such cases the matter would have to be placed before an Officers' committee comprising of the Chief Secretary to Government Haryana, The Financial Commissioner and the Administrative Secretary and Head of the Department concerned. He contends that admittedly this procedure had not been followed in the present case and hence, the order of retirement should be vitiated on this ground alone. He has further contended that as per his matriculation certificate duly submitted to the respondents, his date of birth was 12.7.1932.

However, he had been retired taking his date of birth to be 2.5.1932. He, CWP No.3256 of 1988 [5]

therefore, contended that he had actually been retired before attaining the age of 55 years. Mr.Ahuja also contended that the orders rejecting his representations against the adverse remarks in ACRs were not speaking orders and, therefore, the same should also be set aside.

As against this, Mr.Suresh Monga, learned counsel for the respondents contended that a perusal of petitioner's ACRs makes it explicit that he had three reports wherein his integrity has been doubted in 10 years preceding his date of retirement. Apart from this, his integrity for the years 1970-71 and 1975- 76 had also been doubted. Besides this, he had been censured and even involved in a criminal case. Mr.Monga, therefore, maintained that petitioner certainly was not fit to be retained in service beyond the age of 55 years. Mr.Monga submitted that it is now settled law that even a single report where integrity is doubted in preceding 10 years is good basis to order premature retirement of an employee on attaining the age of 55 years. He further contended that adverse remarks had been communicated to the petitioner and also his representations against the same considered and rejected. He prayed that this was not his case where the petitioner was entitled to any relief in this writ petition.

After considering submissions of the counsel and perusing the paperbook, I am of the opinion that the petitioner had been rightly prematurely retired by the respondents. A perusal of the service record of the petitioner would show that his integrity had been doubted in the report from 2.7.1979 to 31.3.1980 and again doubted in the report from 1.4.1984 to 31.3.1985. Even in the report of 1.4.1983 to 31.3.1984 it has been recorded that `whenever he was entrusted with an investigation he always tried to take the case in such a way so that he could get illegal gratification'. It has further been recorded that the District Magistrate of Kurukshetra also certified this fact and had remarked that complaints were received regarding the petitioner harassing the public. It is, therefore, apparent that even in this report petitioner's integrity is shown to be above Board. Apart CWP No.3256 of 1988 [6]

from this fact, the respondents have stated that petitioner's integrity has also been doubted for the years 1970-71 and 1975-76. There were two cases of censure and a case relating to corruption was registered against the petitioner, even though he was acquitted. I am of the opinion that integrity of an government employee is the primary consideration for retention in service beyond the age of 55 years.

Even a single adverse entry relating to doubtful integrity is itself sufficient to order pre-mature retirement of an employee. The law in this regard was considered by the Hon'ble Supreme Court in State of U.P. v. Vijay Kumar Jain, 2002(2) SCT 408 and it was concluded therein that even a single adverse entry is sufficient to order compulsory retirement of an employee. The observations are as hereunder:-

15. The aforesaid decisions unmistakably lay down that the entire service record of a government servant could be considered by the government while exercising the power under FR 56(c) of the Rules with emphasis on the later entries.. FR 56(c) of the Rules read with sub-rule (2), empowers the State Government with an absolute right to retire an employee on attaining the age of 50 years. It cannot be disputed that the dead woods need to be removed to maintain efficiency in the service. Integrity of a government employee is foremost consideration in public service.

If a conduct of a government employee becomes unbecoming to the public interest or obstruct the efficiency in public services, the government has an absolute right to compulsorily retire such an employee in public interest. The government's right to compulsorily retire an employee is a method to ensure efficiency in public service and while doing so the government is entitled under Fundamental Rule 56 to take into account the entire service record, character roll or confidential report with emphasis on the later entries in the character roll of an employee. In fact, entire CWP No.3256 of 1988 [7]

service record, character roll or confidential report furnishes the materials to Screening Committee or the State Government, as the case maybe, to find out whether a government servant has outlived his utility in service. It is on consideration of totality of the materials with emphasis on the later entries in the character roll, the government is expected to form its opinion whether an employee is to be compulsorily retired or not.

16. Withholding of integrity of a government employee is a serious matter. In the present case, what we find is that the integrity of the respondent was withheld by an order dated 13.6.1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsorily retirement. During pendency of the writ petition in the High Court, the U.P. Services Tribunal on a claim petition filed by the respondent, shifted the entry from 1997-98 to 1983-84.Shifting of the said entry to different period or entry going beyond ten years of passing of order of compulsory retirement does not mean that its vigour and sting of the adverse entry is lost. Vigour or sting of an adverse entry is not wiped out merely it is relatable to 11th or

12th

years of passing of the order of compulsory retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory retirement from services, was duly considered by the State Government and said single advise entry in itself was sufficient to compulsorily retire the respondent from service. We are, therefore, of the view that entire service record or confidential report with emphasis on the later entries in the character roll can be taken into account by the government while considering a case for CWP No.3256 of 1988 [8]

compulsory retirement of a government servant." In the instant case in the 10 years preceding the date when the petitioner was prematurely retired, his integrity had been doubted in three of the confidential reports. I am of the opinion, therefore, that there was sufficient material with the respondents to have prematurely retired the petitioner and the said order does not warrant any interference.

Mr.Ahuja has also argued that his date of birth was 12.7.1932 and not 2.5.1932. In this regard it has been clarified by the State of Haryana that when the petitioner was recruited as a Constable on 3.5.1951 he was not a matriculate.

He voluntarily gave his date of birth at that time as 3.5.1932. He was got examined by the Civil Surgeon who had also certified his age as 19 years as on 3.5.1951. Subsequently, the petitioner passed the matriculation examination.

After about 19 years, he submitted his matriculation certificate in the district office for placing it in his character roll. It is in this certificate that his date of birth was shown as 12.7.1932. However, through out the time the petitioner remained in service for 36 long years, he never raised the issue that his date of birth was 12.7.1932. I am, therefore, of the opinion that at this stage the petitioner cannot raise this issue. It is apparent that he himself disclosed his date of birth as 3.5.1932 at the time of his recruitment and took advantage of the same. Still further he remained silent for a period of three decades. He has, therefore, rightly been retired on attaining the age of 55 years as per the date of birth recorded in his service book. The action of the respondents is valid and legal.

In so far as the allegations of mala fide against Shri R.L.Kalson, IPS are concerned, I am of the opinion that the same are merely an after thought. No such allegations were made in the writ petition and neither has Shri Kalson been impleaded as a party respondent. In the absence of Shri Kalson being a party, this Court would not go into any allegation made against him at his back. Even otherwise, the allegations relate to the report of the year 1979-80. Apart from this CWP No.3256 of 1988 [9]

there are two other reports of integrity doubtful. Therefore, even if the year 1979- 80 for the sake of arguments is excluded from consideration, still there is sufficient material on record to justify the petitioner's retirement.

Mr.Ahuja has also argued that the orders rejecting the representations against the ACRs should be set aside as being non speaking. In this regard, I am of the opinion that the remarks of confidential reports were conveyed to the petitioner. He has filed representations against the same. The same have been examined and rejected. The orders state clearly that the representations were considered by the competent authority but were rejected. Recording of confidential reports is essentially for the administrative authorities. In the present case, the reports were put to the petitioner and his representations considered.

There is no allegation in the writ petition of any malice or mala fide against any person. In the circumstances of this case, I am of the opinion that the representations had been considered and the petitioner was accorded a fair treatment.

For the reasons recorded above, I find no merit in this writ petition.

Consequently, the same is dismissed. In the circumstances of this case, there shall however be no order as to costs.

( P.S.PATWALIA )

May 10, 2006. JUDGE

RC


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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