Civil Writ Petition No.8024 of 2009 (O&M) : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: November 09, 2010 Mohinder Singh EHC .....Petitioner VERSUS State of Haryana & others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Baljinder Singh, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner has challenged the show cause notice dated 2.5.2009 issued to him for his compulsory retirement and for quashing the adverse remarks endorsed in his Annual Confidential Report as recorded and conveyed to him. Prayer further is to quash the order whereby representation filed by the petitioner has been rejected on 14.11.2008. The petitioner was enrolled as a Constable in Haryana Police on 9.11.1981. The petitioner was assigned the duty of Driver Civil Writ Petition No.8024 of 2009 (O&M) : 2 : and remained posted in that capacity at various places during his service of over 26 years. During September, 2006, the petitioner was detailed as Driver on Government Gypsy HR03E-2179 allotted to Raj Pal DSP, State Crime Branch, Haryana. Raj Pal DSP was detailed to investigate a criminal case pertaining to an FIR No.429 of 2004, Police Station Civil Lines, Hisar. The petitioner had appeared as a witness where he made a statement on being summoned by the court that he did not go to Hisar on 6.9.2006. This was contrary to the stand of DSP Raj Pal, who had appeared as a witness in support of the prosecution case. This annoyed Raj Pal DSP. The petitioner also appeared as a witness in an enquiry being conducted against DSP Raj Pal. As per the petitioner, the said DSP endorsed adverse remarks in his ACR for a period from 1.4.2007 to 5.8.2007 to take revenge. These remarks were conveyed to the petitioner on 22.8.2008. The petitioner accordingly submitted a detailed representation against these adverse remarks on 19.9.2008. The said representation was, however, rejected on 14.11.2008. Still, the petitioner filed a representation for expunging these remarks on 18.2.2009. In the meantime, the petitioner was shocked to receive a show cause notice calling upon him to explain reasons as to why he should not be compulsorily retired in public interest under PPR 9.18 (2). The petitioner was asked to submit response within 15 days of the receipt of the said notice. The petitioner accordingly filed the present writ petition to impugn the order rejecting his representation and also the show cause notice issued to him on the ground that the same is illegal , unjust and arbitrary and malafide. Reply on behalf of the respondents is filed by Civil Writ Petition No.8024 of 2009 (O&M) : 3 : Superintendent of Police, Panchkula. Separate written statement is filed by respondent No.6 Raj Pal Singh against whom allegations of malafide are made by the petitioner. It is pointed out that respondent No.6 was posted as DSP, Crime Branch, Panchkula from 1.6.2006 to 6.8.2007. The petitioner was posted as Driver with respondent No.6. On 27.6.2007, respondent No.6 alongwith SI Suresh Kumar received an information that duplicate C.Ds. were being prepared and sold in Ambala Cantt. in large scale. Respondent No.6 and other staff accordingly conducted a raid on the shop of one Ashish son of Mool Chand and recovered fake C.Ds. in large quantity. FIR was accordingly registered on 22.6.2007. Petitioner alongwith HC Jawahar were also members of the raiding party. While respondent No.6 was busy in questioning accused Ashish and other staff members had gone to his factory, the petitioner and HC Jawahar had remained present at the shop of the accused. Both of them removed a sum of `50,000/- from the cash box lying at the shop of the said accused. As per the allegations, HC Jawahar retained sum of `30,000/-, whereas `20,000/- were kept by the petitioner. Accused Ashish made a complaint in this regard to respondent No.6 after his release on bail. The matter was immediately brought to the notice of Addl.Director General of Police, Crime Dr.John V. George. On the direction of Addl.Director General of Police, respondent No.6 got the money returned to accused Ashish from the petitioner as well as from HC Jawahar in the presence of respectable persons at PWD Rest House at Ambala Cantt. As per the reply, on instructions from senior officer, criminal case was not got registered to save the department Civil Writ Petition No.8024 of 2009 (O&M) : 4 : from earning a bad name. The petitioner, however, was considered to be of doubtful and unreliable integrity. He was also not found punctual and used to make excuses for not performing duty in time and accordingly these remarks were endorsed in the ACR of the petitioner for the relevant period. The petitioner had exercised the remedy of filing representation, which has been considered and rejected. This order was passed after due opportunity to the petitioner, when the competent authority did not find any merit in the pleas raised by the petitioner. It is accordingly stated that the petitioner could rightly be compulsorily retired on the basis of his doubtful integrity. Similar stand is taken by respondent No.6 in his reply filed. He has clearly stated that petitioner was made to return the amount taken by him from the shop of accused Ashish and this happened in the presence of the respectable persons, that too at PWD Rest House, Ambala Cantt. Respondent No.6 has also responded to various averments made in the writ petition concerning the bias alleged against him. He has denied the allegations to be wrong. Respondent No.6, however, has not disputed that the petitioner had appeared as a witness but has explained the reasons that he had not used the official vehicle on 6.9.2007 in order to maintain secrecy about the arrest of the accused persons. When the case came up for arguments before this court on 28.7.2010, the facts as reflected in the reply were noticed, which had led to endorsing the adverse remarks in the ACR of the petitioner. The counsel for the petitioner at that stage had seriously disputed these facts. Even at that time, the court had noticed that Civil Writ Petition No.8024 of 2009 (O&M) : 5 : normally it may be difficult to resolve such factual issues while exercising writ jurisdiction, but the court decided to deal with the same because the retirement of the petitioner was stayed since 2009 while issuing notice in this case. Since the reply had been filed by Amitabh Singh Dhillon, IPS, SP, Panchkula. He was directed to be present in person before the court to ascertain if he had obtained any personal instructions from Addl.Director General of Police, Crime Dr.John V. George in regard to the facts disclosed by him in the reply before filing the same before the court. Pursuant to the directions, Mr.Amitabh Singh Dhillon, who by then had been posted as SSP, CBI, Chandigarh came present before the court. In response to a query, the officer confirmed that he had spoken to Dr.John V. George, the erstwhile Addl. Director General of Police, Crime and who had retired and that the Addl.Director General had confirmed this fact and so too the fact that the money was got returned to the accused in the presence of respectables. To similar effect, Mr.Amitabh Singh Dhillon, SP filed an affidavit before the court, which was taken on record. Normally, this should have clinched the issue concerning the reasons for which the adverse remarks were endorsed. The facts coming on record were also enough to belie the allegations of malice made against DSP Raj Pal. The counsel for the petitioner still prayed for time to place on record certain documents, which he claimed to have obtained and which according to him were relevant for deciding the issue. The prayer was accordingly granted and the case was adjourned from time to time till taken up for hearing for decision. The petitioner has filed a misc.application to place on Civil Writ Petition No.8024 of 2009 (O&M) : 6 : record one enquiry report dated 24.11.2009. This report is of a department enquiry held against HC Jawahar Singh. By making reference to this report, the counsel made an attempt to contend that the petitioner was not proceeded against for any allegation as was the case in respect of HC Jawahar. The counsel also submits that if the petitioner was responsible for taking this money, the enquiry was bound to be held against him as well. As per the counsel, even the enquiry held had not found the allegations proved against HC Jawahar and, thus, he was exonerated. From all this, the counsel submits that the reasons as advanced to justify endorsing of adverse remarks in the ACR of the petitioner would not be justified. I am not in a position to subscribe to the line of submission made by the counsel for the petitioner. The petitioner had filed this writ petition to impugn the endorsement of adverse remarks in his ACR and for issuance of a show cause notice based thereon. The case set up by the petitioner is that the adverse remarks were endorsed without any basis. Rather, it was pleaded that the adverse remarks were endorsed on account of malice and malafides on the part of respondent No.6. While responding to this, the respondents pointed out the reasons for which the integrity and honesty of the petitioner were doubted and in this regard reference is made to the incident where the petitioner, while being driver of a vehicle, was able to make away a sum of `50,000/- from the cash box of the accused person. In fact, the incident is mentioned in response to the plea raised by the petitioner. The disputed questions of fact normally could not have been gone into in exercise of writ petition. Still in order to satisfy itself, the court decided to call the person filing the Civil Writ Petition No.8024 of 2009 (O&M) : 7 : reply to ascertain the factual position. It would be very important to notice that the money was returned not in any hush-hush manner but was concededly done in the presence of respectables and that too in the full knowledge of very senior officer of the rank of Addl.Director General of Police, who is named in the reply. The confirmation about this factual position was given before the court by an officer of a rank of Head of police of a District and there is no reason to doubt him. High ranking police officer confirmed before this court on an affidavit that he had spoken to an officer of the rank of Addl.Directror General of Police and had then mentioned so in the reply filed before this court. There is, thus, enough assurance for the court to accept the version as given. There is nothing to doubt the same. The petitioner appears to have been let off lightly. The reasons for not proceeding against the petitioner with a criminal charge would also sound quite plausible. The police would be keen to avoid getting for itself a bad name, if this issue had been further perused and the proceedings conducted against the petitioner and his co-accused. In any event, this is not the issue which was required to be adjudicated by this court as this does not arise directly for consideration. The issue in this case was to ascertain reasons for which the adverse remarks were endorsed in the ACR of the petitioner. It was to see if these remarks were endorsed on account of any malice on the part of respondent No.6 or was due to the reasons as disclosed in the reply. There are sufficient reasons to believe what is being stated in the reply and the stand of the petitioner in this regard cannot be accepted. Since the adverse remarks endorsed in the ACR of the petitioner would appear justified Civil Writ Petition No.8024 of 2009 (O&M) : 8 : on the basis of material, the same cannot be held to be due to any malafide or malice on the part of respondent No.6. This report and the reasons for which these remarks had been endorsed would be enough to take action against the petitioner for compulsory retiring him from service in public interest. As has been consistently held in various judgments, order of compulsory retirement is not a punishment but is to weed out the dead wood in order to maintain a high standard of efficiency and initiative in service. Rules have clearly empowered the Government to compulsorily retire officer of doubtful integrity. In Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, AIR 1992 S.C. 1020, the court laid down the following five principles:- “(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 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. Civil Writ Petition No.8024 of 2009 (O&M) : 9 : (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 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 of interference." The court appears to have added a ridder that opinion must be based on the material on record as otherwise it would amount to arbitrary or colourable exercise of power. The order of compulsory retirement, therefore, can be challenged on the ground that the requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds that it was an arbitrary decision. No such or any such valid grounds are urged before me to challenge the order. The challenge to the report of doubtful integrity, as noticed, can not be upheld. There is, thus, no merit in the writ petition and the same is accordingly dismissed. November 09, 2010 ( RANJIT SINGH ) ramesh JUDGE