High Court of Punjab and Haryana, Chandigarh
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Chander Pal v. State of Haryana & Anr - CWP-10356-2006  RD-P&H 4016 (12 July 2006)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No. 10356 of 2006
Date of decision 17 .7.2006
Chander Pal .. petitioner
State of Haryana and another .. Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE M.M.S. BEDI
PRESENT: Mr.Akshay Bhan, Advocate for the petitioner M.M.Kumar, J.
The order dated 13.6.2006 ( annexure P.4) is the subject matter of challenge in this petition filed under Article 226 of the Constitution. According to the impugned order, the petitioner has been compulsorily retired from service after issuing him a show cause notice on 14.3.2006 under Rule 9.18(2) of the Punjab Police Rules, 1934 (as applicable to and amended by Haryana). The petitioner who was working as Sub Inspector has been retired after due consideration of his whole service record. A bird's eye view of his service record, as mentioned in the impugned order, reads as under: " Departmental inquiry is pending in case no. 449 dated 18.12.1998 u/s 363/366 IPC Police Station Kaithal regarding arresting the accused late.
He has been awarded following punishment during his service:
1. He was awarded punishment of Censure for not issuing stranger Roll after 9.2.1997 vide SP/PKL's order no. 13066-69 dated 6.5.1997.
2. He was awarded punishment of Censure for showing the name of one Tula Ram s/o Dil Bahadur in the list of bail jumper while posted as SHO PS Raipur Rani inspite of his name removed from said list by DC/Ambl vide his letter no.3107/PA dated 11.9.75, by SP/PKL vide OB No.173/97.
3. He was warned to be careful in future for not investigating properly case FIR No.l94 dated 3.7.98 u/s 379 IPC by SP/KKR vide OB No.
4. He was warned for not submitting his explanation in time by SP/KKR CWP 10356 of 2006 2
vide order no. 16549-51 dated 3.5.01.
5. He was awarded a punishment of Censure for not deputing properly night patrolling and nakas duty on the night of 24/235.7.01 while posted as SHO PS Shahabad by SP/KKR vide OB No.319/01.
6. He was awarded a punishment of Censure by SP/KKR vide order no.10111-14 dated 4.3.2002 for showing negligence in the investigation of case FIR No.105/01 u/s 457/380 IPC PS Sadar Thanesar.
7. He was awarded a punishment of Censure for not deputing required force at Shahbad on 8.5.02, while posted as SHO PS Ladwa, by SP/KKR vide OB No.209/02.
8. He was awarded a punishment of Censure in DE by SP/KKR vide order no.24031-34 dated 12.6.2003 on account of not complying the detention order no. 673/01 dated 25.1.02 in respect of Rajnish Kumar r/o Ladwa received from Govt. of India (COFE-POSA Section) was enhanced into stoppage of one increment with permanent effect vide IGP/Ambala Range order no. 28776/A-4 dated 4.11.2003.
9. He was awarded a punishment of stoppage of one increment with temporary effect in a D.E. By SP /KKR vide order no. 50090-94 dated 21.11.2003 on account of verifying the passport enquiry report of Angej Gogna r/o Ladwa and also attested his photo affixed on the passport form whereas during this period he was in USA himself during the posting as SHO PS Ladwa.
10. He was awarded a punishment of Censure by SP/KKR vide order no.19195-98 dated 23.4.2004 for his negligence and disinterest towards official duties while he was as posted as I/C Prosecution Cell, Kurukshetra.
11. He was awarded a punishment of stoppage of one annual increment with permanent effect by SP/KKR vide order no.19793-96 dated 26.4.2004 as on 31.10.03, some unknown person had stolen Govt.
motor cycle no. HR 05 J 3506 from TAC, Samalkha and caused loss of motorcycle while he was posted as I/C Traffic Aid Centre, Samalkha in CWP 10356 of 2006 3
Haryana Highway Patrol and Road Safety at Karnal.
12. He was warned as a result of D.E. By SP/KTL vide order no. 82/ST dated 13.8.05 for not taking interest in his duty the visit of late Sh. O.P.
Jindal, Electricity Minister, Haryana State, while he was posted as Addl.SHO PS City/ Yamunanagar on 28.3.2005." We have heard the learned counsel at some length who has placed reliance on a Full Bench judgement of this Court in the case of Daya Nand v. State of Haryana 1994(3) PLR 652 and argued that the case of the petitioner for promotion has been recommended on the post of Inspector after his promotion as Sub Inspector on 13.10.1999. The recommendation has been made on 14.10.2005. According to the learned counsel the recommendation itself is sufficient to wash any adverse entry in the service record of the petitioner. Learned counsel has further argued that service record of the petitioner for the last ten years contains only Good/ Very Good entries and therefore by adopting any criterion, he cannot be considered as a dead wood.
Having heard the learned counsel we are of the view that the whole service record of the petitioner has been kept in view in order to arrive at the satisfaction as to whether the petitioner is worthy of retention in service as he has become dead wood and an inefficient officer. It is true that the petitioner was promoted as Sub Inspector 13.10.1999. However, entries even after 1999, from paras 3 to 12, would show that the petitioner is not worthy of retention in service. He has been repeatedly awarded punishment of Censure. He has also been awarded punishment of stoppage of increment with cumulative effect vide order dated 4.11.2003 and with temporary effect vide order dated 21.11.2003. Again a punishment of stoppage of one annual grade increment with cumulative effect was awarded on 26.4.2004. It is well settled proposition of law that in order to chop off a dead wood, the appointing authority can consider the whole service record of an officer and if it comes to the objective satisfaction that such an employee has become dead wood then there is no bar on the authority to pass such an order. We find that the conclusion arrived at by the Review committee is neither arbitrary nor unreasonable. In that regard, reliance could be placed on a judgement of the Supreme Court in the case of Baikuntha Nath Dass v. Chief District Medical Officer (1992)2 SCC
299. In paragraph 34 of the afore-mentioned judgement, the following principles have CWP 10356 of 2006 4
been laid down:
" The following principles emerge from the above discussion: i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior.
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 bis excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interefere if they are satisfied that the order is passed (a) malafide or (b) that it is based on no evidence or (c) that 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 an performance during the later years. The record to be so 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 the 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 uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference." It is well settled that only on the ground of mala-fide or when there is no evidence or the order is otherwise arbitrary, the interference of this Court would be CWP 10356 of 2006 5
warranted. The ratio of the judgement in Baikuntha Nath Dass's case (supra) has been repeatedly followed and applied by the Supreme Court in the case of Badri Nath v.
Government of Tamil Nadu (2000) 8 SCC 395; State of U.P. v. Raj Kishore Goel (2001) 10 SCC 183, Union of India v. V.P.Seth AIR 1994 SC 1261 and State of U.P. and another v. Lalsa Ram (2001) 3 SCC 389. The Reviewing Committee has been influenced only with one consideration namely public interest. Emphasising the afore-mentioned aspect and the fact that the whole service record has to be viewed, their Lordships in Lalsa Ram's case observed as under:
" Incidentally, the five guiding principles as laid down in Baikuntha Nath case by this Court stand accepted in another three-Judge Bench's judgement of this Court in Posts and Telegraphs Board v. CSN Murthy (1992) 2 SCC 317 wherein this Court observed that whether the conduct of the employee is such as to justify a conclusion of compulsory retirement but the same is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement, the Courts have no authority or jurisdiction to interfere with the exercise of power if arrived at bona fide on the basis of the material available on record: Usurpation of authority is not only unwarranted but contrary to all norms of service jurisprudence.
16. ......... The appointing authority upon consideration of the entire service record is required under the Rules and having formed its opinion that the compulsory retirement of the respondent in public interest issued the order and in the wake of the aforesaid, question of any interference of this Court does not and cannot arise. Interference in these matters by the Courts in exercise of their jurisdiction under the constitutional mandate is very restricted and the Courts shall have to tread on the issue with utmost care and caution by reason of very limited scope of interference. The High Court has, infact, ignored this aspect of the matter and proceeded solely on the basis of the factum of there being no adverse entry in the recent past.
Needless to state that adverse entries did not stand extinguished by mere lapse of time but they continued to be on record and it is for the employer CWP 10356 of 2006 6
to act and rely thereon in the event of there being a rule permitting an order of compulsory retirement." (emphasis added) When the facts of the present case are examined in the light of the law laid down by the Supreme Court, no doubt is left that the respondents have examined the whole service record of the petitioner and in the larger public interest, the petitioner has been retired compulsorily. There are no allegations of mala-fide and it can also not be concluded that the order is passed with no evidence so as to infer that the petitioner is not dead wood. We are also unable to find anything arbitrary in passing of the impugned order. It is evident that the adverse remarks of the service record prior to promotion would loose its sting. Those entries in the service record which have been made before promotion in 1999 have not exclusively influenced the decision taken by the Reviewing Committee. There is thus no merit in this petition. Accordingly, the same is dismissed.
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