RSA No.2942 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.2942 of 1986 Date of Decision: 17.9.2008 Shri Bachan Singh .....Appellant Vs. State of Punjab ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. Aftab Singh Bakshi, Advocate for the appellant. Mr. H.S. Gill, D.A.G. Punjab for the respondent. .... RAJIVE BHALLA, J (Oral) The appellant, challenges judgements and decrees dated 19.8.1985 and 25.4.1986 passed by the Sub-Judge, Ist Class, Amritsar and the Additional District Judge, Amritsar, dismissing his suit and appeal, respectively. The plaintiff-appellant filed a suit for declaration, impugning the correctness of the order of his pre-mature retirement dated 21.8.1975. The appellant alleged that after he retired from the Indian Army in the year 1962, he was enrolled in the Punjab Home Guards and Civil Defence as a Platoon Commander in October 1963. He discharged his duties honestly and conscientiously but was prematurely retired in public interest, though there was no material before the punishing authority to form such an opinion. In opposition to the averments in the plaint, the respondent submitted that the appellant was prematurely retired in public interest under RSA No.2942 of 1986 2 Rule 3(1)(a) of the Punjab Civil Services (Premature Retirement) Rules, 1975 (hereinafter referred to as `the Rules'), as his service record was unsatisfactory and as such was not considered fit enough to be retained in service. The appellant filed a replication, controverting the averments in the written statement. On the basis of the pleadings, the trial Court framed the following issues :- “1. Whether the orders of the Commandant General, Punjab Home Guards dated 21.8.1975 is illegal, void, etc. as alleged in the plaint ? OPP. 2. Whether the order of Secretary, Punjab Home Guards dated 25.4.79 declining the appeal of the plaintiff is unconstitutional, ultravires etc. ? OPP. 3. Whether the suit is time barred ? OPD. 4. Whether this Court at Amritsar has got no jurisdiction to try the suit ? OPD. 5. Whether the plaintiff has no justifiable cause ? OPD. 6. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial Court held that in view of the consistent adverse remarks earned by the appellant, as reflected in his annual confidential reports for the years 1963-64 to 1973-74, the order of premature retirement did not suffer from any illegality. On an argument being addressed by the appellant that these reports were not communicated RSA No.2942 of 1986 3 and could, therefore, not form the basis for an order of premature retirement, it was held that this argument was factually incorrect, as these reports were communicated to the appellant. Aggrieved by the dismissal of his suit, the appellant filed an appeal. Vide judgement dated 25.4.1986, the Additional District Judge, Amritsar, affirmed the findings recorded by the trial Court and dismissed the appeal. Counsel for the appellant submits that in the written statement, the respondent merely alleged that the appellant's service record was unsatisfactory, without making any reference to any adverse confidential reports. The trial Court, therefore, committed a grave error in allowing the respondent to produce the annual confidential reports in evidence. It is further argued that the service record Ex.D-2 that contains the adverse annual confidential reports was produced by one Tilak Raj, a staff officer, who could not identify the signatures on the these reports. The adverse reports should, therefore, have been ruled out of consideration. Another argument pressed into service is that in the absence of any evidence that the adverse reports were ever communicated to the appellant, the Courts below committed an error in holding that these reports were communicated. It is further argued that no legal material was available before the punishing authority, to enable it to form an opinion that the appellant should be compulsorily retired. Counsel for the respondent submits that a written statement, merely sets out the facts pleaded in defence. It was, therefore, not necessary for the respondent to make a detailed reference to the adverse confidential reports. The service book Ex.D-2, which contains the adverse reports was RSA No.2942 of 1986 4 produced, in evidence by a departmental witness and admitted into evidence without any specific objection, as to the mode and manner of its proof. The arguments that the adverse entries were not proved is, therefore, incorrect. To the appellant's submission that the adverse confidential reports were not communicated or that the respondents failed to prove that they were communicated, it is submitted that Tilak Raj DW-1, who produced the service book containing the adverse reports, made a specific statement that the adverse reports were communicated to the appellant. During cross-examination, the correctness of his statement was not questioned. As regards the argument that there was no material before the punishing authority to form an opinion, it is submitted that the appellant joined service in 1963 and was retired on 21.8.1975. During this period of 12 years, a majority of the confidential reports were adverse and, therefore, for the appellant to allege that there was no material before the punishing authority, to form an opinion that the appellant's retirement was required in public interest, is an argument raised by disregarding these facts. I have heard learned counsel for the parties, the impugned judgements, as also the relevant record. As noticed herein above, the appellant was re-employed by the Punjab Home Guards and Civil Defence as a Platoon Commander in October 1963. During the period of his re-employment, except for the year 1965-66, all other entries in the confidential reports are adverse. A perusal of the adverse entries disclose adverse remarks such as “shirking responsibility”, “lack of intelligence and common sense”, “has a mischievous trend”, “disloyal”, “quarrelsome”, “not fit for promotion” and such similar remarks. A perusal of the annual confidential reports, which RSA No.2942 of 1986 5 were placed before the Punishing Authority leaves no manner of doubt that the Punishing Authority had sufficient material before it to form a bonafide opinion that the appellant's compulsory retirement was imperative, in public interest. The argument by counsel for the appellant that as the written statement does not refer to any adverse reports, they could not have been lead into evidence, cannot be accepted. A written statement is a factual narrative of a defendant's stand and need not necessarily refer to the supporting evidence. The averment in the written statement that the appellant's service record was unsatisfactory is a fact pleaded in defence, whereas the adverse confidential reports are evidence to substantiate this fact. The absence of a reference to the adverse annual confidential reports, in the written statement, is therefore, insufficient to discard them from consideration. The next argument that the adverse annual confidential reports were not proved, as DW-1, had no personal knowledge of the signatures appearing on the annual confidential reports, must also fail. The appellant's service record was exhibited as Ex.D-2 without any particular objection. This file containing the adverse reports were, therefore, rightly read as legal evidence by the trial Court. The argument that the adverse reports were never communicated, to the appellant and should, therefore, be ruled out of consideration, is factually incorrect. While deposing as DW-1 Tilak Raj, specifically stated that the adverse entries were conveyed to the appellant. His deposition was not challenged in cross-examination. A question was, however, asked as to why the entry for the year 1965-66 was not RSA No.2942 of 1986 6 communicated. In reply, this witness stated that this entry was not communicated, as it was not adverse. It is, therefore, apparent that DW-2's deposition that the adverse reports were communicated to the appellant remained unchallenged and unrebutted. The last argument that there was no material legal or otherwise, before the Punishing Authority, to enable it to form an opinion that the appellant should be retired in public interest, is entirely misplaced. The annual confidential reports, available in the appellant's service record Ex.D-2, leave no manner of doubt that there was sufficient material before the Punishing Authority to record its conclusion that in view of the unsatisfactory service record, the appellant's compulsory retirement, from service, was imperative in public interest. As noticed in the preceding paragraphs, a majority of the reports were adverse. The remarks that have been detailed in the earlier part of the judgement leave no manner of doubt that the order of compulsory retirement was in no way malafide, illegal or arbitrary. The concurrent findings of fact returned by the Courts below as to the legality of the order of compulsory retirement, therefore, do not call for any interference. As no question of law, much less a substantial question of law arises, the appeal is dismissed, with no order as to costs. 17.9.2008 (RAJIVE BHALLA) GS JUDGE RSA No.2942 of 1986 7