CIVIL WRIT PETITION NO.9973 OF 2010 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 28 , 2011 Raj Singh Dahiya .....Petitioner VERSUS The State of Haryana and 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. P. L. Verma, Advocate, for the petitioner. Mr. Sunil Nehra, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner seeks quashing of order dated 22.4.2010, directing his pre-mature retirement on completion of 55 years of service in public interest. Having been enrolled as Constable on 3.7.1973, the petitioner was promoted as Head Constable in the year 1989. As per Punjab Police Rules, promotion from one rank to another and from one grade to another grade in the same rank is done on the basis of selection tampered by seniority. As per the petitioner, efficiency and CIVIL WRIT PETITION NO.9973 OF 2010 :{ 2 }: honesty is the main governing factor. The petitioner was promoted as ASI in the year 2000 and as Sub Inspector with effect from 1.10.2007. As per the instructions dated 14.3.2006 issued by the Department, case of every employee is required to be considered for extension of service beyond 55 years of age. The process for judging the suitability of a police officer for retention in service beyond 55 years should commence 6 months prior to the due date. The instructions provide that only those employees are generally allowed to continue in service, who have 70% or above good record to show and their integrity is not doubted in any of the reports for the last 10 years. Respondents served a notice to the petitioner for retirement under Rule 3.6 (d) of Civil Service Rules read with Rule 19.8 (1) (c) of the Punjab Police Rules, putting him to notice of three months for retiring him on the expiry of notice period. The petitioner claims that his service record has been good or above and he has earned various commendations for exemplary service and has accordingly impugned this notice on the ground that decision to compulsorily retire the petitioner is perverse and this decision can not be made on the basis of service record of the petitioner. While issuing notice of motion on 26.5.2010, the operation of the impugned notice was suspended. Respondents have filed reply, justifying their action in compulsorily retiring the petitioner. It is stated in the reply that the service record of the petitioner was examined and it reveals that he was imposed punishment of censure for carelessness and CIVIL WRIT PETITION NO.9973 OF 2010 :{ 3 }: indiscipline in 1995. Another punishment of censure was awarded to him for extortion of money from truck driver in the year 2003. Yet another censure was conveyed to the petitioner for not sending form of the arrested accused for verification. At the time of consideration of his case for extension beyond 55 years of age, the petitioner was under suspension for not arresting one accused who is wanted in an FIR for an offence under Section 302 IPC. This FIR was registered, when the petitioner was Incharge, Police Station Sector 9, Gurgaon. The murder had taken place on 29.4.2009. When this FIR was registered, the petitioner was associated with the investigation of this criminal case with Investigating Officer. One accused, Ravinder Kumar had confessed that he alongwith Vinod were involved in this murder case. The petitioner, being witness to this, had signed the confession memo. Another FIR was recorded under Section 307 IPC on the statement made by accused Vinod. The petitioner was investigating the same but did not arrest Vinod, who was wanted in murder case. Thus, he was found careless, negligent and having been mixed up with the criminals, which was a stigma on his integrity. Accordingly, the petitioner was not found fit for retention beyond 55 years in public interest. The respondents plead that they have an absolute discretion to retire an employee if he is not found fit to serve beyond 55 years of age in public interest. The petitioner has not made any allegation of malafide or arbitrariness or about competency of the authority in issuing the notice and hence, no case for interference in the writ petition is made out. As per the respondents, the subjective satisfaction of the competent authority can not be interfered with by CIVIL WRIT PETITION NO.9973 OF 2010 :{ 4 }: Court as if it is entertaining an appeal. In this regard, reference is made to some of the judgments of the Hon'ble Supreme Court, mainly being Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, AIR 1992 Supreme Court 1020. The counsel for the petitioner has also made reference to some of the precedents of this Court to primarily urge that the censure being considered to deny extension to the petitioner would loose its significance as subsequent thereto the petitioner was promoted and all such adverse remarks would loose its sting. Law on compulsory retirement is well settled. The ratio of law laid down in Baikuntha Nath Das's case (supra) has governed the field and the same has been reiterated in number of subsequent judgments. An order retiring an employee on completion of 55 years of age is not passed as a punishment. It implies no stigma nor is a suggestion of misbehaviour. It is not a punitive order. A competent authority has a discretion to retire an employee after he attains a particular age or completes a particular period of service. The principles laid down by the Hon'ble Supreme Court through various judgements were listed by the Court in Baikuntha Nath Das's case (supra) and these can be summed up as under:- “i. An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. 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. CIVIL WRIT PETITION NO.9973 OF 2010 :{ 5 }: 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) malafide 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 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 adverse remarks, such remarks lose their sting, moreso, 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 un-communicated adverse remarks were also taken into consideration. That circumstances by itself cannot be a basis for interference.” The Court has also observed that interference is CIVIL WRIT PETITION NO.9973 OF 2010 :{ 6 }: permissible only on the ground mentioned in (iii) above. Thus, such an order can be interfered with when it is passed with malafide or it is based on no evidence or it is found to be perverse in the sense that no reasonable person would form the requisite opinion on given material. The nature of function while passing this order was held not to be quasi-judicial because the action has to be taken on the subjective satisfaction of the Government/competent authority. It is accordingly held that there is no room for entertaining the facit of audi alteram partem of the principles of natural justice in such a case. The nature of this power to compulsory retire a person was again considered in Bishwanath Prasad Singh Vs. State of Bihar and others, (2001) 2 Supreme court Cases 305. A distinction between compulsory retirement awarded as punishment and under fundamental rule is pointed out as under:- “Compulsory retirement in service jurisprudence has two meanings. Under the various disciplinary rules, compulsory retirement is one of the penalties inflicted on a delinquent government servant consequent upon a finding of guilt recorded in disciplinary proceedings. Such penalty involves stigma and cannot be inflicted except by following procedure prescribed by the relevant rules or consistently with the principles of natural justice if the field for inflicting such penalty be not occupied by any rules. Such compulsory retirement in the case of a government servant must also withstand the scrutiny of Article 311 of CIVIL WRIT PETITION NO.9973 OF 2010 :{ 7 }: the Constitution. Then there are service rules, such as Fundamental Rule 56(j) of the Fundamental Rules, which confer on the Government or the appropriate authority, an absolute (but not arbitrary) right to retire a government servant on his attaining a particular age or on his completing a certain number of years of service on formation of an opinion that in public interest it was necessary to compulsorily retire him. In that case, it is neither a punishment nor a penalty with loss of retiral benefits. Compulsory retirement in public interest under service rules is like premature retirement. It does not cast any stigma. The government servant shall be entitled to the pension actually earned and other retiral benefits. So long as the opinion forming basis of the order for compulsory retirement in public interest is formed bona fide, the opinion cannot be ordinarily interfered with by a judicial forum. Such an order may be subjected to judicial review on very limited grounds such as the order being mala fide, based on no material or on collateral grounds or having been passed by an authority not competent to do so. The object of such compulsory retirement is to weed out the worthless who have lost their utility for the administration.” These being the parameters, let us consider the case of the petitioner whether this order will fall within the domain of judicial review by this Court. Learned counsel for the petitioner has placed before me CIVIL WRIT PETITION NO.9973 OF 2010 :{ 8 }: number of precedents. He would first refer to the decision in the case of E/SI Anand Kishore Vs. State of Haryana & others, (Civil Writ Petition No.4680 of 2010), decided on 2.12.2010. In this case, this Court has considered the effect of promotion granted to the petitioner therein to the rank of Sub Inspector and it was, therefore, pleaded that vigour or sting of the adverse entry would in a way stand wiped out. This judgement was upheld by the Division Bench in an LPA filed by the State of Haryana. Reliance was placed on Punjab State and others Vs. Kulwantbir Singh, 1993(2) SCT 567. In this regard, some observations found to have been made in Baikuntha Nath Das's case (supra), were referred to and accordingly the impugned order was held not justified. Reference is made to State of Haryana and others Vs. Davinder Singh, SI, 2009 (4) RSJ 511. In this case, remarks of integrity doubtful recorded in the ACR of the year 1962-63 was not taken relevant material on the ground that subsequently the petitioner was promoted on the higher post and allowed to cross efficiency bar, besides earning good and very good reports in the last preceding 7 years. The ratio of law in this case would not strictly apply to the facts of the present case. Here the order of compulsory retirement is not based on any stale remarks of integrity doubtful in the ACR. Even the ratio of case in State of Haryana and others Vs. S.I. Ram Niwas, 2005 (1) RSJ 585, referred to by the Court, may not apply to the facts of the present case. Here the order of compulsory retirement was found to have been passed because of non-application of mind, which exercise had not been undertaken by CIVIL WRIT PETITION NO.9973 OF 2010 :{ 9 }: the SP to evaluate the service record. This Court in Davinder Singh ASI Vs. State of Haryana and others, 2011 (1) SCT 447, has viewed that order of compulsory retirement merely on the basis of punishment of stoppage of one annual grade increment with temporary effect by no yardstick can be justified. The petitioner had not even been challaned in the criminal case, which was another factor taken into consideration and also that he was exonerated in the departmental enquiry. Entry of doubtful integrity was quashed being unjustified. It is in this context that the Court appears to have observed that the compulsory retirement, which was ordered on the basis of cumulative effect of all the service record is not sustainable only on the basis of punishment of stoppage of one increment. The counsel has then referred to the case of Mohamid Hanief Khan Vs. The State of Haryana and others (Civil Writ Petition No.6376 of 2010), decided on 1.11.2010. In this case, the petitioner had been ordered to be compulsorily retired on the basis of certain punishments imposed on him in the course of his service. While making reference to the instructions dated 14.3.2006, which regulated the compulsory retirement of the police officials, it is noticed that the nature of charge is to be seen and if this reflects on the integrity of the employee, then he may not be permitted to serve beyond 55 years of age. The instructions also provide that minor punishments like warning/censure should be avoided and those cases where charge sheet is issued under Rule 7 of the Punishment and Appeal Rules and where Court case is pending and the charges are of the nature of aspersion on integrity, then those are to be CIVIL WRIT PETITION NO.9973 OF 2010 :{ 10 }: referred to the office of Director General. The petitioner in this case was found to be having 70% and above good reports and there was no remark about his integrity being doubtful. The punishments imposed on the petitioner were found to be minor, except for one. Finding that such an order can not be passed to attach stigma, the order of compulsory retirement was held bad. The counsel has further relied upon the case of State of Gujarat Vs. Umedbhai M.Patel, 2001 (2) RSJ 87. The Hon'ble Supreme Court has again noticed the law, which has crystalized into definite principle in regard to compulsory retirement and has summarized these as under:- “(i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead-wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be CIVIL WRIT PETITION NO.9973 OF 2010 :{ 11 }: passed as a short cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) Compulsory retirement shall not be imposed as a punitive measure.” Accordingly, the Court has viewed that if an officer is given promotion despite adverse entries made in the confidential report, then it is a fact in favour of the officer. It is not that it will be washed off. On the other hand, Mr.Nehra has invited my attention to two of the recent decisions by the Hon'ble Supreme Court. In the case of Pyare Mohan Lal Vs. State of Jharkhand and others, AIR 2010 SC 3753; 2010 (10) SCC 693, the Hon'ble Supreme Court has considered in detail the washed off theory. In this regard, the Hon'ble Supreme Court has taken notice of various cases like State of Punjab Vs. Dewan Chuni Lal, AIR 1970 SC 2086, Baidyanath Mahapatra Vs. State of Orissa & Anr., AIR 1989 SC 2218, State of Orissa & Ors. Vs. Ram Chandra Das, AIR 1996 SC 2436 and Umedbhai M.Patel's case (supra). In Dewan Chuni Lal's case (supra), two Judge Bench of the Supreme Court took a view that the adverse entry regarding dishonesty and inefficiency of the employee in his ACR have to be ignored if subsequent thereto he had been allowed to cross efficiency bar. In Baidyanath Mahapatra's case (supra), the Court took a view that the adverse entries awarded to the employee in remote past lost CIVIL WRIT PETITION NO.9973 OF 2010 :{ 12 }: their significance in view of the fact that he had subsequently been promoted to the higher post. However, a different view taken by the Court in Ram Chandra Das's case (supra) is then noticed, where it was held that such entry still remain part of record for overall consideration to retire a Government servant compulsorily. It is further observed that such entries do not lose significance even if the employee has subsequently been promoted. The Court has observed as under in this regard:- “.....Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal . What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the government servant in service after he attained the required length of service or qualified period of service for pension.” The Hon'ble Supreme Court has noticed that the earlier two judgements were by two Judge Bench whereas judgement in Ram Chandra Das's case (supra) was three Judge Bench of the Hon'ble Supreme Court. It is then noticed that the view expressed in CIVIL WRIT PETITION NO.9973 OF 2010 :{ 13 }: Ram Chandra Das's case (supra) was approved by the Court in Umedbhai M.Patel's case (supra). Reference here can also be made to State of U.P. and others Vs. Vijay Kumar Jain, AIR 2002 SC 1345. In this case, the Court has held that vigour or sting of an entry does not get wiped out particularly while considering the case of employee for giving him compulsory retirement as it requires the examination of entire service record, including character rolls and confidential reports. Vigour or sting of the adverse entries is not wiped out merely because it relates to remote past. There may be a single adverse entry of integrity, which may be sufficient to compulsorily retire the Government servant. The Hon'ble Supreme Court in the case of Pyare Mohan Lal (supra) has then discussed in detail the position of law where there is conflict of two or more judgements to hold that the judgement of the larger Bench is to be followed. The Court has further observed that the washed off theory does not have universal application and it may have relevance while considering the case of Government servant for further promotion but not in case where the employee is being assessed by the reviewing authority to determine whether he is fit to be retained in service or requires to be given compulsory retirement, as the Committee is to assess his suitability, taking into consideration his entire service record. Accordingly, the prayer made by counsel for the petitioner that the entries taken into consideration had lost its sting in view of subsequent promotion has to be considered in the light of law now summarized by the Hon'ble Supreme Court in Pyare Mohan Lal's case (supra). CIVIL WRIT PETITION NO.9973 OF 2010 :{ 14 }: The State counsel has then referred to the case of National Aviation Company of India Ltd. Vs. S.M.K.Khan, AIR 2009 SC 2637: 2009 (5) SCC 732, where the Court has taken a view that such order of compulsory retirement in compliance with the Rule is neither a punishment nor considered to be stigmatic. In fact, the Hon'ble Supreme Court has observed that an order of compulsory retirement in pursuance of Rule or Regulation, which enable the competent authority to prematurely retire an employee on the formation of a bonafide opinion that continuation of an employee in service will not benefit the Institution or be in the interest of Institution (or will not be in public interest) where the Government employee is a Government servant on review of the performance/service record of the employee, on the employee attaining the specified age or completing the specified period of service is valid and not open to challenge. The Court has held that it is neither a punishment nor considered to be stigmatic. Not only this, the Court has further observed that the unsatisfactory service record of the employee, which may include persistent misconduct or inefficiency furnishes the background for taking a decision that employee has become a dead wood and that he should be retired compulsorily. Such compulsory retirement is noted to be different and distinct from imposition of punishment of compulsory retirement or dismissal/removal on a specific charge of misconduct, where the misconduct is the basis of punishment. Noticing the difference of these two factors, the Court has observed as under:- “Firstly, the employee on account of completing a particular age or number of years of service falls within CIVIL WRIT PETITION NO.9973 OF 2010 :{ 15 }: the zone where his performance calls for assessment as to whether he is of continued utility to the employer or has become a deadwood or liability for the employer. Secondly, the record of service, which may include poor performance, unsatisfactory service or incidentally any recent conduct (which if separately considered may constitute a misconduct subject to punishment) when considered as a whole, leads the Reviewing Authority to the conclusion that the employee in question is not fit to be continued in service and not of utility to the employer. Therefore, any incidental reference to unsatisfactory service, or any remarks in the context of explaining the reason for compulsory retirement under the relevant rule, in the letter of compulsory retirement will not be considered as stigmatic, even though read out of context, they may be capable of being construed as allegations of misconduct. Any order of compulsory retirement in terms of the rule/regulation providing for such compulsory retirement is not open to interference unless shown to be malafide or arbitrary or not based on any background material at all relating unsatisfactory service justifying the premature retirement. When an order of compulsory retirement purports to be one under the rule/regulation providing for such premature retirement, the proper approach of the court would be to consider whether the order is sustainable with reference to the requirements of the