High Court of Punjab and Haryana, Chandigarh
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Mohinder Pal v. State of Haryana & Ors - CWP-1084-2003  RD-P&H 6588 (6 September 2006)
C.W.P. No. 1084 of 2003
Date of Decision: September 5, 2006
State of Haryana and others
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MR. JUSTICE M.M.S. BEDI
PRESENT: Mr. Sunil Chaudhary, Advocate,
for the petitioner.
Mr. Harish Rathee, Sr. DAG, Haryana,
for the respondents.
M.M. KUMAR, J.
This petition filed under Article 226 of the Constitution prays for quashing order dated 27.6.2002 (P-3), which was served upon the petitioner on 5.12.2002, vide which the petitioner has been ordered to be compulsorily retired from service. A further prayer has been made for allowing the petitioner to serve in the Police Department upto the age of superannuation i.e. upto 31.3.2011.
Brief facts of the case may first be noticed. As per the averments made in the petition, the date of birth of the petitioner is 23.3.1953. He joined service in the respondent Department as a CWP No. 1084 of 2003
Constable on 4.12.1972. In October 1988 he passed the Lower School Course. In November 1988 he was placed on C List and promoted as Head Constable. When the petitioner was posted at Government Railway Police Kalka, he was served with a notice dated 15.2.2002 (P-1) to show cause as to why he be not compulsorily retired under Rule 9.18(2) of the Punjab Police Rules, 1934, as amended by the Haryana Government (Haryana Second Amendment) Rules, 1973 (for brevity, `the Rules'). The aforementioned show cause notice was served upon the petitioner after he completed 25 years of qualifying service on 4.12.1997, on the basis of two adverse remarks for the period from 23.7.1993 to 31.3.1994 and 7.12.1994 to 31.3.1995, which were duly conveyed to him. He was awarded punishment of censure in 1994 for not depositing the telephone bill within time given and another punishment of stoppage of four future annual increments with permanent effect was inflicted upon him vide OB No. 172/95. The adverse remarks for the period from 23.7.1993 to 31.3.1994 and 7.12.1994 to 31.3.1995 reads as under:- "23.7.93 to 31.3.94 (Conveyed)
Discipline He should improve
Reliability Not reliable
Moral Character Not good.
General Remarks: He has issued fictitious DDR No. 14 dt. 24.4.93 to Subhash
Chander. He is a below average
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7.12.94 to 31.3.95 (Conveyed)
Moral Character Immoral
General Remarks Indulge in malpractices." On 6.3.2002, the petitioner gave reply to the show cause notice (P-2). After seeing the confidential record, punishments inflicted, considering the reply of the petitioner and after obtaining approval of the State Government vide Memo. No. 5/38/2002-3HGI, dated 11.6.2002, respondent No. 2 passed an order dated 26.6.2002, under the provisions of Rule 9.18(2) of the Rules, compulsorily retiring the petitioner from service with immediate effect. The aforementioned order was served upon the petitioner by the Superintendent of Police Railways, Haryana, Ambala Cantt. vide Endst. No. 44712-20/A-1, dated 3.12.2002,which is the subject matter of challenge in the instant petition.
The petitioner has sought to challenge the aforementioned order Annexure P-3 by levelling malafides against Shri M.S. Ahlawat, the then Superintendent of Police Railways. He has tried to project that the reason for spoiling his two ACRs by Shri M.S. Ahlawat, the then Superintendent of Police, Railways, was that there were allegations against the said officer that two boys of Agra CWP No. 1084 of 2003
were kept under illegal confinement by the CIA Staff of GRP Haryana at GRP Kalka with the permission of Shri M.S. Ahlawat when he was posted as Superintendent of Police, Railways, who had inspected the GRP Police Station Kalka on 21st and 22nd
1993. It has further been asserted that the Hon'ble Supreme Court appointed Warrant Officer and issued notice to Shri M.S. Ahlawat, the then S.P. Railways and Shri V.N. Rai, the then Deputy Inspector General of Police Railways. It has been alleged that they were not on good terms and both of them wanted the subordinate officers to give statements in their favour as the CBI was enquiring into the matter of illegal custody of those two boys under the directions of the Hon'ble Supreme Court. The petitioner refused to side with either of them which infuriated Shri M.S. Ahlawat and he immediately transferred the petitioner to the 2nd
Reserve in GRP Lines on 23.10.1993 and later on in the Standing Guard at Yamuna Bridge. He has also recorded adverse ACR out of vindictiveness and animosity. It has further been alleged that the second report was recorded at the time when the matter was being taken by Hon'ble the Supreme Court and in fact Shri M.S. Ahlawat was convicted for one year imprisonment by the Hon'ble Supreme Court. In the 2nd
ACR integrity of the petitioner
has been doubted. It is claimed that the same is against law as well as instructions issued by the Haryana Government for recording ACRs.
In para 8 of the petition, the petitioner has admitted that against the first adverse remarks (23.7.1993 to 31.3.1994) he did not file any representation. However, with regard to the second adverse remarks (7.12.1994 to 31.3.1995) he has denied that the same were ever CWP No. 1084 of 2003
conveyed to him. He has also pleaded that the punishing authority has not considered his reply at all and no speaking order has been passed, which is also not in consonance with the provisions of Rule 9.18(2) of the Rules as well as the principles of natural justice. The petitioner has placed reliance on the judgments in the cases of Amrik Singh v. State of Haryana, 1995 (3) SCT 617; Avtar Singh v. State of Haryana, 1993 (3) SCT 215; State of U.P. v. Yamuna Shankar Misra, 1997 (3) RSJ 33; Ram Phal v. State of Haryana, 1995 (4) SLR 155; Chiranjit Lal v. State of Haryana (C.W.P. No. 18130 of 2001, decided on 22.10.2002); and SI Amrik Singh v. State of Haryana, 1995 (2) SLR 769.
On 21.5.2003, a written statement on behalf of respondent Nos. 1 to 4 was filed by Shri Ravi Azad, IPS, Superintendent of Police, Railways, Haryana, Ambala Cantt. In the preliminary objections the stand taken is that the adverse entries contained in the ACRs of the petitioner have attained finality as he has never challenged those adverse remarks either before the appellate authority or before any Court of law. It has been specifically asserted that the adverse remarks in question were duly conveyed to the petitioner at the relevant point of time and the petitioner has duly received these remarks under his signatures.
Respondents Nos. 1 to 4 justified the impugned order of compulsory retirement by stating that the competent authority has rightly considered over all service record of the petitioner and then came to the conclusion that it is not in the public interest to retain him in service any more. Rule 9.18(2) of the Rules gives absolute right to CWP No. 1084 of 2003
the competent authority to retire a person compulsorily keeping in view the over all service record of any employee. It has been submitted that the petitioner has now levelled bald allegations against the authority who recorded the adverse remarks and at the relevant point of time the petitioner never raised any allegation of malafide or arbitrariness, therefore, he is estopped to raise such type of plea at this belated stage when neither the adverse remarks are under challenge nor the officer against whom the allegation of malafide has been levelled, has been impleaded as a party respondent. It has further been stated that the judgments relied upon by the petitioner have no applicability to the facts and circumstances of the present case. The respondents have relied upon the judgments of the Hon'ble Supreme Court in the cases of Baikuntha Nath Das v. Chief District Medical Officer, Baripada, (1992) 2 SCC 299 and State of Gujarat v.
Umedbhai M. Patel, AIR 2001 SC 1109. On merits, in reply to para 6 of the writ petition, it has been specifically pointed out that the second adverse remarks for the period from 7.12.1994 to 32.3.1995 were never recorded by Shri M.S. Ahlawat against whom malafide has been levelled by the petitioner in the writ petition. Actually, for the said period, the ACR of the petitioner was recorded by Shri Shiv Shakti Rai, IPS, the then Superintendent of Police, Railways, Haryana. The allegations of the petitioner in relation to illegal custody of boys have also been denied by stating that the said case has no concern with the recording of the annual confidential report in question and the report was incorporated by Shri M.S. Ahlawat in view of the work and conduct of the petitioner.
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On 24.2.2004, the petitioner filed replication to the written statement filed by respondent Nos. 1 to 4. Controverting the written statement the petitioner reiterated the stand taken in the writ petition. In para 5 of the replication, while giving reply to para 6 of the written statement, the petitioner come up with a new plea by mentioning as under:-
"5. That para No. 6 of the written statement is wrong, incorrect and hence denied. In fact due to the in fighting between then Supdt. of Police Sh. M.S.
Ahlawat IPS and the then DIG Railways Sh. V.N.
Rai IPS and successor to Sh. M.S. Ahlawat Sh.
Shiv Shakti Rao IPS were fighting with each other and most of the subordinate officials were dubbed as corrupt by one of them only on the presumption that the other is more nearer to the other. The true facts are given in corresponding para and it is also worth mentioning here that Sh. Shiv Shakti Rao IPS has spoiled the ACRs of more than 95% of the officials working under him within a period of 3 moths and 20 days i.e. from 7.4.94 to 31.3.1995." It is appropriate to mention here that when the case came up for hearing on 3.5.2004, this Court observed that one of the grounds on which the petitioner has challenged his retirement under Rule 9.18(2) of the Rules is that he had not been conveyed the adverse remarks recorded in ACR for the period from 7.12.1994 to 31.3.1995. In the written statement filed on behalf of the respondents CWP No. 1084 of 2003
it has been averred that adverse remarks were duly conveyed to the petitioner. During the course of hearing, Shri Rajbir Sehrawat, Senior Deputy Advocate General, Haryana, produced before this Court confidential rolls of the petitioner to show that the disputed adverse remarks casting reflection on petitioner's integrity were conveyed to him and he had received the communication on 18.5.1995. In this view of the matter, this Court directed the petitioner to file his own affidavit on this issue.
Consequently, the petitioner filed his additional affidavit, dated 9.5.2004. Surprisingly, this time the petitioner took a total somersault and again came up with a new plea that after seeing his signature he remembered that signatures were taken from him and the copy of adverse remarks was not supplied at that time and it was said that the copy of the ACR will be given in a day or two. He has levelled allegations against Shri Shiv Shakti Rao, IPS in the affidavit.
The contents of the affidavit reads as under:- "1. That the deponent was serving in the Govt.
Railways Police Haryana at Ambala.
2. That the deponent was never served the copy of ACR for the period from 7.12.1994 to 31.3.1995 though on the copy of the ACR kept in the office bears the signature of the deponent.
3. That after seeing the signature the deponent remembered that signatures were taken from the deponent and the copy was not supplied at that CWP No. 1084 of 2003
time and it was said that the copy of the ACR will be given in a day or two.
4. That no copy of ACR was ever given to the deponent so the deponent did not file any representation.
5. That during this period Sh. Shiv Shakti Rao was the Supdt. of Police Railways and he had spoiled the ACR of almost all the NGO's who belongs to the caste other than the caste of Sh. Shiv Shakti Rao. This fact will be proved from the record, if the ACR during this period is called for and some of the officials had filed writ petitions in this Hon'ble Court in which Sh. Shiv Shakti Rao had been made a party and the allegation of spoiling of ACR of the NGO's of other castes then the caste of Sh. Shiv Shakti Rao are levelled. One such writ petition is No. 12212 of 2002 filed by HC Deep Chand No. 411 GRP and Sh. Shiv Shakti Rao had not denied the allegations.
6. In that writ petition para No. 14 is read as: "That the ACR was recorded by Sh. Shiv Shakti Rao who has succeeded Sh. Mahender Singh Ahlawat as S.P. Railways Ambala Cantt. Sh. Rao for a period of about 4 months had adversely
commented upon the ACRs most of the NGO's and written the same words against the column of CWP No. 1084 of 2003
discipline, integrity, reliability, moral character and he had intentionally due to the caste hatred had spoiled the ACRs of most of the employees who does not belong to his caste when he remained as SP for a small period. The petitioner who according to the recording officer was suspended on 25.1.1995 and was still under suspension when the ACR was recorded, this itself is proved that ACR has been wrongly and
incorrectly and with some malafide has been recorded"
7. That Sh. Shiv Shakti Rao IPS did not file any written statement and written statement on his behalf was also filed by S.P. Railways and in para 14 of the written statement the allegations have not been specifically denied. Para 14 of the written statement reads as: "In reply to this para it is submitted that ACR of the petitioner for the period from 7.12.1994 to 31.3.1995 was rightly recorded after considering the overall work and conduct of the petitioner. It is further submitted that the adverse remarks in question were recorded in view of the rules/instructions. The allegation of the petitioner that the ACR of most of the officials had been adversely commented upon due to caste hatred, is wrong and baseless."
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8. That the ACR of the petitioner had never been commented upon and his integrity had never been doubted in 30 year service except this period of about 4 months which has been recorded in a mechanical manner and against all the officials the same four words have been recorded.
9. That as regards the stoppage of 4 future annual increments in 1995 that was due to the
lapse/mistake of the subordinate of the petitioner Sh. Babu Ram who was Asstt. Moharrir and the petitioner was Moharir for issuing some certificate to one citizen for the loss of his identity card on the ground that the applicant has not attached some document."
In view of the stand taken by the petitioner in the replication as well as in the additional affidavit, when case came up for hearing on 26.5.2005, this Court felt the necessity to implead Shri Shiv Shakti Rao, IPS as a party. Accordingly, the petitioner filed Civil Misc. No. 15482 of 2005 and vide order dated 8.9.2005 Shri Shiv Shakti Rao, IPS, was ordered to be impleaded as Respondent No. 5 in the instant petition.
Thereafter, on 18.4.2006, Shri Shiv Shakti Rao, IPS, the then Superintendent of Police, Railways, Haryana, Ambala Cantt.
filed his separate written statement controverting the allegations levelled by the petitioner. In the preliminary submission the stand taken is that the adverse remarks have been recorded in accordance CWP No. 1084 of 2003
with Government instructions and on the basis of objective assessment of work and conduct of the petitioner. It has been specifically denied that he has recorded the annual confidential report of the petitioner out of vindictiveness or animosity. In reply to para 8 of the writ petition, it has been specifically mentioned that the adverse remarks for the period from 7.12.1994 to 31.3.1995 were duly conveyed to the petitioner by the office vide Memo. No. 122, dated 17.5.1995 under proper signatures and receipt of the petitioner.
Mr. Sunil Chaudhary, learned counsel for the petitioner has argued that the adverse remarks for the period from 7.12.1994 to 31.3.1995 cannot be made the basis for retiring the petitioner prematurely, inasmuch as the entire record of the petitioner is unblemished and no adverse report has ever been conveyed to him.
He has maintained that the Reporting Authority has without any rhyme or reason recorded the integrity of the petitioner as doubtful and no reasons or instances have been given. He has emphasised that the whole service record of the petitioner is Good or Very Good and, therefore, merely on the basis of the aforementioned adverse reports the petitioner could not be prematurely retired. However, despite repeated query made by us as to why the petitioner has not taken all the pleas, which have been taken in the replication and additional affidavit, at the time of filing the petition whereas the same were available to him at the time of filing the same, the learned counsel could not give any satisfactory reply to the same.
Mr. Harish Rathee, learned State counsel, while justifying the impugned order compulsorily retiring the petitioner in CWP No. 1084 of 2003
public interest, has drawn our attention to the repeatedly shifting stand of the petitioner, which he has taken in the writ petition, replication and additional affidavit, and argued that the petitioner has not approached this Court with clean hands and tried to mislead this Court by taking the plea that the adverse report for the period from 7.12.1994 to 31.3.1995 was never conveyed to him, whereas on the contrary it is proved on record that the ACR for the aforementioned period was duly conveyed to the petitioner vide Memo. No. 122, dated 17.5.1995 under proper signatures and receipt of the petitioner.
He once again produced the original Confidential Personal File of the petitioner in the Court wherein the aforementioned letter Memo. No.
122, dated 17.5.1995 is at page No. 25, which bears the signatures of the petitioner and shows that the adverse remarks were duly received by him on 18.5.1995.
Having heard the learned counsel at a considerable length and perusing the record, we are of the considered view that this petition is liable to be dismissed. It would be pertinent to make a reference to Rule 9.18 of the Punjab Police Rules, 1934, which is reproduced hereunder:-
"Rule 9.18 for Haryana. (1) Notwithstanding anything contained in these Rules, a retiring pension is granted to an officer
(a) who is permitted to retire from service after completing qualifying service of twenty-five years or such lesser period of as may, for any class of officers, be prescribed; or
CWP No. 1084 of 2003
(b) who is compulsorily retired under sub-rule (2) after completing twenty-five years' qualifying service; or
(c) who is retired by the appointing authority on or after he attains the age of 55 years, by giving him not less than months' notice; or
(d) who retires on or after attaining the age of 55 years by giving not less than three months' notice of his intention to retire to the appointing authority.
Provided that where the notice is given before the age of fifty-five years so attained, it shall be given effect to from a date not earlier than the date on which the age of fifty-five years is attained.
Note:- Appointing authority retains an
absolute right to retire any Government servant on or after he has attained the age of 55 years without assigning any reason. A corresponding right is also available to such a Government servant to retire on or after he has attained the age of 55 years.
(2) The Inspector-General of Police may, with the previous approval of the State Government; compulsorily retire any Police Officer, other than an officer belonging to Indian Police Service or Haryana State Police Service who has completed twenty-five years' qualifying service, without giving any reasons.
An officer who is so compulsorily retired will not be CWP No. 1084 of 2003
entitled to claim any special compensation for his retirement.
Note:- The right to retire compulsorily
shall not be exercised when it is in the public interest to dispence with the further services of an officer on grounds such as inefficiency, dishonesty, corruption or infamous conduct. Thus the rule is intended for use (i) against an officer whose efficiency is impaired but against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient i.e., when as officer's value is clearly incommensurate with the pay which he draws but not to such a degree as to warrant his retirement on a compassionate allowance. It is not the intention to use the provisions of this rule as a financial weapon that is to say the provisions should be used in only the case of an officer who is considered unfit for retention on personal as opposed to financial grounds.
(ii) in cases where reputation for corruption, dishonesty or infamous conduct is clearly established even though no specific instance is likely to be proved." The provisions of Rule 9.18 (2) of the Rules stipulates that the Inspector-General of Police may, with the previous approval of the State Government, compulsorily retire any Police Officer, other than an officer belonging to Indian Police Service or Haryana State Police Service who has completed twenty-five years' qualifying CWP No. 1084 of 2003
service, without giving any reasons. An officer who is so compulsorily retired is not entitled to claim any special compensation for his retirement. It is further pertinent to mention that Note (ii) to sub-rule (2) of Rule 9.18 of the Rules postulate that in cases where reputation for corruption is established even without disclosing any specific instance then the right of compulsory retirement on the completion of 25 years of service can be exercised in larger public interest.
On the basis of the report showing integrity doubtful, the petitioner has lawfully been retired from service, which is in larger public interest as postulated by Rule 9.18 of the Rules. A perusal of the adverse remarks recorded in the ACR of the petitioner for the period from 7.12.1994 to 31.3.1995 categorically shows that the integrity of the petitioner has remained doubtful. It is well settled that if integrity of an employee is doubted even once then such an employee may have to be chopped off as a deadwood, which is in larger public interest. The aforementioned proposition has repeatedly been considered by Hon'ble the Supreme Court. In Baikuntha Nath Das v. Chief District Medical Officer, Baripada, (1992) 2 SCC 299, the whole earlier case law was reviewed and following five propositions were extracted and the same reads as under:- "34. 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 misbehaviour.
CWP No. 1084 of 2003
(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) mala fide 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 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 CWP No. 1084 of 2003
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 equally well settled that once there is an entry of `integrity doubtful' in the service record of an employee then it is considered to be in larger public interest to retire such a person prematurely. In that regard, reliance may be placed to the judgments of Hon'ble the Supreme Court in the cases of Union of India v. Ajoy Kumar Patnaik, (1995) 6 SCC 442 and Jugal Chandra Saikia v.
State of Assam, (2003) 4 SCC 59. In para 5 of the judgment in Jugal Chandra Saikia's case (supra) it has been noticed that the review committee had concluded that the delinquent employee had outlived its utility and was of doubtful integrity. In Jugal Chandra Saikia's case (supra), Hon'ble the Supreme has followed and applied the principles of law as laid down in Baikuntha Nath Das's case (supra).
The controversy with regard to communication or non- communication of the adverse report regarding integrity of the petitioner would not survive in view of the law laid down by Hon'ble the Supreme Court in Baikuntha Nath Das's case (supra). In the CWP No. 1084 of 2003
proposition (v) as extracted above, it has been categorically observed that the non-communication of adverse report alone cannot constitute a basis for interference of the Court. We further find that in the present case the report, in fact, has been communicated and the petitioner has made incorrect averments in that regard.
The allegation of malafide levelled against Shri M.S.
Ahlawat cannot be considered because the petitioner has failed to implead him as party whereas the allegations levelled against Shri Shiv Shakti Rao, IPS, have been controverted in every respect.
Therefore, there is no merit in the aforementioned contention raised on the basis of malafide levelled against the officers concerned.
When the facts of the present case are examined in the light of the principles laid down by Hon'ble the Supreme Court in the aforementioned judgments, no doubt is left that the order dated 27.6.2002 (P-3) deserves to be upheld as the same is in larger public interest because it seeks to get rid of an inefficient and dishonest officer. The above mentioned order has been passed in consonance with the requirements of Rule 9.18 of the Rules as has already been observed in the preceding paras. Therefore, there is no merit in this petition.
In view of above, the writ petition fails and the same is dismissed.
CWP No. 1084 of 2003
September 5, 2006 JUDGE
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