LPA No. 1689 of 2011 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 1689 of 2011 (O & M) Date of decision:- 13.09.2011 Ram Tirath ...Appellant Versus State of Haryana and others ...Respondents CORAM: HON'BLE MR. JUSTICE PERMOD KOHLI HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Sandeep Kotla, Advocate for the appellant. RITU BAHRI J. Challenge in this Letters Patent Appeal is to the order dated 06.7.2011 passed in Writ Petition No.11059 of 2010 whereby the learned Single Judge dismissed the writ petition seeking quashing of order of premature retirement of writ petitioner, appellant herein who was working as ASI in the Haryana Police Department. The petitioner was initially recruited as Constable. He was promoted as Head Constable on 01.10.1995 and as ASI on 09.4.2003. While serving as ASI he was compulsorily retired vide order dated 17.4.2010. As per instructions for extension beyond the age of 55 years, last 10 years record was to be considered by the competent authority. The competent authority examined the complete service record, which revealed following punishments were awarded to the petitioner :- “I. Punishment of stoppage of one annual increment with temporary effect for showing LPA No. 1689 of 2011 (O & M) -2- negligence in case FIR No.447 dated 24.06.2007 u/s 460 IPC, 452 dated 28.6.2007 u/s 498-A/406/506 IPC and 456 dated 02.7.2007 u/s 498-A IPC Police Station Gurgaon vide OB No.102 dated 4.2.09. II. Punishment of censure for his negligence in the investigation of case FIR No.191 dated 06.05.08 u/s 380/452/506 IPC, P.S. Sohna vide order dated 27.06.09. III. Punishment of stoppage of one future increment with temporary effect for tempering the index of case FIR No.447 dated 24.06.2007 u/s 460 IPC, 452 dated 28.6.07 u/s 498- A/406/506 IPC and 456 dated 02.07.07 u/s 498-A/406/34 IPC, P.S. City Gurgaon by applying fluid vide OB No.288 dated 22.02.10. IV. Punishment of stoppage of one future increment with temporary effect vide order dated 12.04.10 for showing negligence in the investigation of case No.376 dated 19.07.07 u/s 498-A and 406 IPC, P.S. City, Gurgaon.” There is no adverse entry regarding integrity being doubtful in any of the ACR of the petitioner for the last ten years. In an additional affidavit of the Commissioner of Police, Gurgaon, it has been stated that the petitioner was held guilty by the National Human Rights Commission, New Delhi vide its letter dated 04.05.2000 in which penalty of Rs.1,40,000/- as compensation was imposed upon him and his other associates. The allegations before the Human Right Commission were that seven children aged 7 to 12 years belonging to Balmiki Community were brought to the police station. They were stripped naked, beaten up and paraded in Om Nagar and Shanti Nagar areas while their parents looked as helpless spectators. LPA No. 1689 of 2011 (O & M) -3- The children while playing had gone to the compound of one ASI Daya Nand to retrieve a ball. ASI Daya Nand, HC Ram Tirath and Constable Raj Kumar had committed this inhuman act. In Baikuntha Nath Das and another versus Chief District Medical Officer, Baripada and another AIR 1992 SC 1020 the Supreme Court has held that principles of natural justice have no place in the context of the order of compulsory retirement. The criteria laid down by the Supreme Court is that it can interfere in an order of compulsory retirement if it is based on no evidence, malafide or no reasonable person would form the requisite opinion on the given material to retire an officer compulsorily. It was further held that the High Court would not examine the matter as an Appellate Court, it may interfere if it is satisfied that the order is passed (a) malafide or (b) that it is based on no evidence, or, (c) that it is arbitrary or perverse. The entire service record has to be considered before taking a decision in the matter. Un-communicated adverse remarks can be taken into consideration while considering the case of an employee for compulsory retirement. The learned Single Judge while relying upon the judgment of Baikuntha Nath's case (supra) has found no infirmity in the order dated 29.7.2011 (Annexure P-2) by which the petitioner was compulsorily retired. Mr. Sandeep Kotla, counsel for the appellant has argued that the petitioner was facing criminal proceeding due to matrimonial dispute in the family. The compensation of Rs.1,40,000/- imposed by the Human Rights Commission was by way of an ex-parte order. On the basis of these entries, he cannot be compulsorily retired. His entire record is 70% good. The petitioner was facing trial in FIR LPA No. 1689 of 2011 (O & M) -4- No.468 of 10.06.1999 under Sections 323,504,506,384,34 of IPC and under Section 3 of the Scheduled Castes & Scheduled Tribes Act, 1989, registered at Police Station City, Gurgaon and he has since been acquitted vide order dated 20.04.2004. The State has not filed any appeal against the order of acquittal. The order passed by the Human Rights Commission is under challenge in civil suit No.191 dated 27.09.2005, pending in the Court of Civil Judge (Junior Division) Gurgaon. While considering the case of compulsory retirement of judicial officer, the Constitution Bench of the Supreme Court in Pyare Mohan Lal versus State of Jharkhand and others 2010(4) SCT 664 has held that the law requires the authority to consider the entire service record of the judicial officer while assessing whether he can be given compulsory retirement or not. The scope of judicial review in a case of compulsory retirement is limited. Challenge to compulsory retirement is permissible only on the grounds of non-application of mind, malafides or want of material particulars. The power to retire compulsorily a Government servant in terms of service rules is absolute, provided that the authority concerned is of a bonafide opinion that compulsory retirement is in public interest. In a recent case Union of India and others versus Manab Kumar Guha, 2011(3) SLR 685, the Supreme Court has dealt with the case of compulsory retirement of a Constable. Complainant Harish Chandra Ram levelled allegations against the Constable that he had dragged him in the yard and assaulted him and snatched Rs.400/- and a key of tractor from his possession. On the complaint, the Constable was put under suspension. After inquiry the LPA No. 1689 of 2011 (O & M) -5- Constable was held guilty and he was removed from services. On appeal, the punishment of removal from service was substituted by that of a compulsory retirement. The order of dismissal was substituted by the Appellate Authority by compulsory retirement on the ground that the complainant did not appear before the Inquiry Officer to substantiate the allegations of the complaint. The delinquent Constable accepted the incident but denied that he had snatched the money. On the basis of material on record the Inquiry Officer held the Constable guilty. The Appellate Authority substituted the order of dismissal to that of compulsory retirement. The High Court while exercising the power of judicial review set aside the order of compulsory retirement. The Supreme Court allowed the appeal filed by the Union of India and upheld the order of compulsory retirement. The findings were not perverse, hence, interference by the High Court by exercising the power of judicial review was not called for. In the facts of the present case the entire record of Head Constable Ram Tirath was assessed which consisted of various punishments awarded to him. The Government while exercising power under Rule 3.26(d) of Civil Services Rules and 9.18(1)(c) of Punjab Police Rules has followed the procedure. The competent authority took into account the order passed by the National Human Rights Commission, New Delhi vide its letter dated 04.5.2000, in which penalty of Rs.1,40,000/- as compensation was imposed upon the petitioner and his other associates for the allegation of stripping seven children aged 7 to 12 years belonging to 'Balmiki' Community when they were brought to the police station. In the above noted facts the order of compulsory retirement does not amount to an order of LPA No. 1689 of 2011 (O & M) -6- punishment. It has been passed as per the subjective satisfaction of the competent authority. There are no allegation of malafide, arbitrariness on the competent authority in passing the order of compulsory retirement. The Letters Patent Appeal is hence dismissed. No costs. ( RITU BAHRI ) JUDGE September 13, 2011 ( PERMOD KOHLI ) Vijay Asija JUDGE