CIVIL WRIT PETITION NO.13109 OF 2009 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 19, 2010 Constable Richhpal Singh .....Petitioner VERSUS State of Haryana and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr.R.K.Malik, Sr.Advocate with Mr.Kohal Sharma, Advocate, for the petitioner. Mr.Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner has filed this writ petition to impugn the order of his compulsory retirement. The petitioner would contend that order of his retirement primarily is based on adverse remarks endorsed in his confidential report for the period from 1.4.2001 to 31.3.2002. The petitioner, thus, has also made a challenge to this annual confidential report, besides challenging the order of his compulsory retirement. CIVIL WRIT PETITION NO.13109 OF 2009 :{ 2 }: The petitioner is a Constable and was to attain superannuation on 31.6.2013, his date of birth being 15.6.1955. He was recruited as Constable on 31.1.1979. On 11.7.2002, he was conveyed adverse remarks recorded in his confidential report for the period from 1.4.2001 to 31.3.2002. As per the petitioner, these remarks were based on a criminal case registered against him. The petitioner filed a representation against the said adverse remarks, but the same was dismissed on 30.11.2004. On 26.6.2008, the petitioner was served a notice requiring him to show cause as to why he should not be retired from service on the basis of material attached with the notice. The material attached with the notice was the adverse remarks endorsed in the report for the year 2001-2002. The petitioner submitted his response and after considering the same, the petitioner was ordered to be compulsorily retired on 14.11.2008. It appears that the petitioner was acquitted in the criminal case on 27.11.2008, which was progressed against him before Addl.Sessions. The petitioner accordingly submitted a representation before the D.G.P. to review the order dated 14.11.2008, vide which the petitioner had been compulsorily retired. In this representation, the petitioner had also prayed for expunging the adverse remarks recorded in the confidential report for the year 2001-2002. This representation filed by the petitioner was not being decided when he approached this court through CWP No.21833 of 2008. The said writ petition was disposed on 24.12.2008 with the direction to D.G.P. to decide the representation filed by the petitioner within a period of two months. D.G.P. rejected the said representation on 4.8.2009. The D.G.P. was of the view that the petitioner had been acquitted by CIVIL WRIT PETITION NO.13109 OF 2009 :{ 3 }: giving him benefit of doubt and the adverse remarks on the basis of criminal case, thus, could not be expunged. The petitioner thereafter filed the present writ petition to impugn the order of his compulsory retirement and for expunging the annual confidential report, which primarily formed the basis of order compulsorily retiring the petitioner. The respondent-State has filed reply challenging the maintainability of the writ petition. It is stated that order of compulsory retirement of the petitioner was passed in public interest under Rule 9.18 (2) of PPR, 1934 on the basis of entire record of the petitioner. It is further pointed out that FIR was registered against the petitioner under Sections 384/34 IPC for extorting `20' Dinars from a foreign traveller in Indian Railways. The petitioner alongwith another Constable Ishab Khan were convicted by Metropolitan Magistrate Delhi, but however, the petitioner was acquitted in appeal by giving him benefit of doubt. The misconduct on the part of the petitioner for extortion was serious enough, which had tarnished the image of the police in public. Besides, the petitioner had also been awarded a punishment of censure on 24.5.1981 and some other punishments. He was also awarded a punishment of stoppage of four increments with permanent effect for negligence on patrolling duty in train. It was on the basis of this entire record that an opinion was formed that the petitioner had outlived his utility as a police officer and was not fit to be retained in service. The order of compulsory retirement of the petitioner, thus, is justified. Mr.R.K.Malik, Senior Advocate submits that the confidential report written on the petitioner for the year 2001-2002 was only on account of the criminal case registered against him, CIVIL WRIT PETITION NO.13109 OF 2009 :{ 4 }: which subsequently ended in his acquittal. He would, thus, contend that this report would need to be set aside upon acquittal of the petitioner of the criminal charge, which, formed the basis of endorsing the remarks in the report for the year 2001-2002. The counsel would further contend that order of compulsorily retirement is based on his report primarily and if this report goes, then order of compulsory retirement of the petitioner can also not be sustained. In support of his submission, Mr.Malik has referred to the case of Kirpal Singh Officiating Assistant Sub-Inspector of Police Vs. The State of Punjab and others, 1969 SLR 120, where this court has observed that the remarks having been communicated during the pendency of a criminal case while the person was under suspension cannot be allowed to stand after he has been acquitted by the Sessions Judge. These remarks were accordingly quashed. Reference is also made to the case of Shashi Kumar Vs. Uttri Haryana Vijli Vitran Nigam and another, 2005(1) RSJ 718, where this court has viewed that the concept of honourable acquittal or full exoneration can have no place in a criminal trial and that the moment the criminal charge fails in a court of law, person should be deemed to be acquitted of the blame. Reliance is further placed on an unreported judgment in CWP No.8403 of 2006 (Ranbir Singh Vs. The State of Haryana & others), decided by Division Bench of this Court on 24.12.2008, where the remarks in the annual confidential report were set aside on the ground that the person had been acquitted of the criminal charge and order of compulsory retirement was also set aside, which was passed on the basis of said adverse remarks about the integrity. CIVIL WRIT PETITION NO.13109 OF 2009 :{ 5 }: The State counsel, however, would refute the submissions and would submit that the entire report is not based on the criminal charge and that the order of compulsory retirement was also not based on his report alone as is being projected. He would accordingly submit that no case for interference in the impugned order is made out. While issuing notice of motion, one of the contention raised by the counsel for the petitioner and as noticed was to the effect that though the entire report may not have to be set aside on account of the acquittal of the petitioner in a criminal case, but some portion of the report containing adverse remarks obviously will have to go which had taken colour from the said criminal proceedings. The proposition of law that an acquittal in a criminal case would have effect on the remarks endorsed in the annual confidential report on the basis of such criminal charge should not be a matter of debate. However, what exact effect such an acquittal would have would depend upon case to case and it cannot be universally said that the entire report would have to be set aside on the basis of acquittal in a criminal case. The nature of remarks endorsed in the report would have to be minutely examined and only those part of the adverse remarks would get effected on account of acquittal which are clearly taking colour from the criminal charge or relatable to the commission of an offence on the part of an employee. If the entire report is on the basis of a criminal charge of which the person is subsequently acquitted by a court trying him, then ofcourse the entire report may have to go. Another aspect to be seen is as to what effect the CIVIL WRIT PETITION NO.13109 OF 2009 :{ 6 }: expunging of a report, even if allowed, would have on the consequential order of compulsory retirement. If the remarks in the annual confidential report based on a criminal charge are the only basis for ordering compulsory retirement, then any order expunging such remarks would definitely have resultant effect on the consequential order of compulsory retirement passed on that basis. That may not be a position where the order of compulsory retirement is not solely based on the annual confidential report, which had taken colour from the criminal charge and is ordered to be expunged. Keeping these parameters in view, the submissions made in the present case are required to be appreciated. Let us now examine the impugned Annual Confidential Report to see if it was entirely based on the criminal charge alleged against the petitioner. The remarks which were conveyed to the petitioner on 11.7.2002 are as under:- “In the confidential card of Const.Richhpal Singh, 113/GRP for the period from 1.4.01 to 31.3.02, he has been described as under:- 1. Discipline In-disciplined 2. Integrity Doubtful 3. Reliability Average 4. General Remarks Case FIR No.65/2001 u/s 384/34 IPC PS Hzrat Nizamuddin (Delhi) is pending against him” Can remarks endorsed in all the columns be said to be relatable to registration of a criminal case against the petitioner?. The petitioner is described as “In-disciplined soldier”. His reliability is CIVIL WRIT PETITION NO.13109 OF 2009 :{ 7 }: termed as “average”. His integrity is referred to as “doubtful”. In the columns of general remarks, reference is made to the criminal case registered against him, which was then pending. Undoubtedly, the columns in the general remarks are clearly relatable to the registration of a criminal case and his acquittal would have definite effect on these remarks endorsed in the column of general remarks. Remarks regarding his discipline apparently are not relatable to the criminal case registered against him and so too would be the remarks endorsed in regard to his reliability. If the criminal case was the reason to term his reliability as “average”, then perhaps remarks would have been little more forthright and he would not have been, thus, assessed as average as regard to his reliability. Discipline also has got no relation with the commission of an offence on his part to an extent the remarks in the column of integrity may have had taken colour from the criminal case registered against him. It is, thus, not possible to say that the entire report for the year 2001-2002 would have to go on account of his acquittal of a criminal charge. In fact, in his undated representation (Annexure P-2) made to D.I.G., which was rejected on 30.11.2004 (Annexure P-3), the petitioner himself has mentioned that the remark against the column of discipline is quite conjectural and apparently whimsical. This would obviously show that even the petitioner did not consider it to have been influenced by the registration of a criminal case against him which would further be apparent from the contents of his representation, wherein he has mentioned that the reporting officer has not cited any instance where he might have shown any disobedience/impertinence to any one or that he otherwise had CIVIL WRIT PETITION NO.13109 OF 2009 :{ 8 }: conducted himself in any indisciplined manner. While challenging the remarks regarding doubtful integrity, the petitioner did not co-relate it to the registration of a case against him and, thus, he clearly understood that this remark was also not relatable to the criminal case registered against him. In the representation, the petitioner has made reference to a circular dated 12.12.1985, which states that adverse remarks about integrity must invariably be fortified by definite instances and reasons which may be in the possession of the reporting officer. The petitioner had then made reference to some judgments to urge that adverse entry of integrity doubtful has a serious consequences and the reporting officer, therefore, was supposed to base such remarks on definite material after thorough verification. It is only in regard to the remarks contained in the general remarks column that the petitioner stated that the case registered against him was absolutely false, which is bound to end up in his acquittal. He had termed these remarks as recorded to be premature, which were bound to do a great harm to him. Thus, the petitioner himself had only co-related the remarks in the general remarks column with the registration of a case against him. He had virtually not challenged the remarks regarding reliability in the report in the representation which he initially filed. In this background, it would be difficult to say that the entire report for the year 2001-2002 is relatable to the registration of a criminal case or that the remarks in all the columns were on the basis of the criminal case registered against the petitioner. Reasonably, only the remarks in the general remarks column can be related to the registration of the criminal case and not the remarks CIVIL WRIT PETITION NO.13109 OF 2009 :{ 9 }: endorsed against other columns. In his reply to the show cause notice, the petitioner had only prayed that the final result on the criminal charge be awaited. In his subsequent representation seeking review of the order after his acquittal of the criminal charge against him, the petitioner has made reference to the adverse remarks in the column of general remarks and then had prayed for that these adverse remarks were recorded in the Annual Confidential Report only based on the criminal case of which he was acquitted and so the adverse remarks were liable to be expunged. The averments made by the petitioner in this regard in his representation dated 5.12.2008 are as under:- “The adverse remarks recorded in the confidential report are only based upon the criminal case registered against me. Rather specifically mentioned in the adverse confidential report as under:- “General Remarks: Case FIR No.65/2001 U/s 384/34 IPC PS Hzrat Nizamuddin (Delhi) is pending against him.” The said report was only based upon the said case registered against me U/s 384/34 IPC PS Hzrat Nizamuddin (Delhi). There was no other material at all except the above said criminal case. If the comments of the confidential reporting authority be called then your honour will find that except this criminal case there was no other material except the criminal case. It is further necessary to mention here that in the said Criminal Case, I was also convicted by CIVIL WRIT PETITION NO.13109 OF 2009 :{ 10 }: Sh.S.K.Gautam, MM Delhi. I had filed appeal against the conviction order before Addl.Sessions Judge, Delhi and my appeal was allowed on 27.11.08 and I was acquitted from the charge. The copy of the judgment of Ld. Addl.Sessions Judge, Delhi to this affect is attached as Annexure P-7. So, the said adverse remarks recorded in the confidential report of the period from 1.4.01 to 31.3.02 is only based on the criminal case and once I have been acquitted by the Ld.Criminal Court then these adverse remarks are liable to be expunged.” No reference was made even in this representation to the remarks endorsed against the columns of discipline, integrity and reliability while making prayer for expunging the report. No doubt, the Director General, while rejecting this representation, considered the seriousness of the allegations made against the petitioner and the acquittal being due to benefit of doubt, but it cannot be said that the entire report would have to go due to the reasons of the acquittal of the petitioner. Apparently, the petitioner was seeking review of only part of the report in regard to the remarks contained in the column of general remarks. The other remarks endorsed in the report are neither relatable to the criminal case nor were so projected. The case for expunging the entire annual confidential report, thus, is not made out. Let us now proceed to examine the other aspect to see if the order of compulsory retirement is based on this report entirely or not. Alongwith the show cause notice issued to the petitioner, the CIVIL WRIT PETITION NO.13109 OF 2009 :{ 11 }: material taken into consideration to pass the order was also supplied to the petitioner. The report for the period from 1.4.2001 to 31.3.2002 was one of the material supplied in support of the proposed action. Besides, other punishments inflicted on the petitioner were also taken into consideration for passing the order of compulsory retirement and these were put to the petitioner as a material in support of the show cause notice. The punishments taken into consideration as listed in the grounds/material are as under:- 1. Awarded a punishment of `Censure' on account of his absence on 23/24-5.81 at the time of roll call vide OB No.1088/81. 2. Awarded a punishment of 15 days Drill on a complaint received against him for misbehaving with L/NK Jai Pal and demanding Rs.10/- for his entrance in the train while on patrolling duty vide OB No.1338/85. 3. Awarded a punishment of stoppage of four increments with permanent effect in a departmental enquiry conducted against him for negligence on patrolling duty in train, vide OB No.443/93.” It, thus, cannot be said that report for the year 2001-2002 was the only material which weighed with the authorities to order the compulsory retirement of the petitioner. Even if the part of the report would be effected on account of an acquittal of the petitioner, then it would not have any major effect on the outcome of the order of compulsory retirement. To be fair to the petitioner, the remarks endorsed in the column, reading general remarks, may have to be ignored, but not any other material taken into consideration while CIVIL WRIT PETITION NO.13109 OF 2009 :{ 12 }: passing the order of compulsory retirement and even if this remark is excluded from consideration, there is no likelihood of any major change in the final outcome. The remarks in the columns of discipline, integrity and reliability would be enough to sustain the impugned order of compulsory retirement and hence no case for interference in the impugned order would be made out. In contrast to the remarks endorsed in the Annual Confidential Report of the petitioner, the remarks, which were ordered to be expunged by this court in Kirpal Singh's case (supra), were recorded as under:- “Honesty Corrupt Reliability Unreliable. General remarks Is corrupt and harbours criminals” In another report, when the said petitioner in Kirpal Singh's case (supra) was tried under Section 379 IPC etc., the remarks were: Honestly Corrupt Reliability Is not reliability General remarks A corrupt officer.” The above remarks endorsed in the case of Kirpal Singh (supra) clearly were relatable to the criminal offence alleged against the employee which is not so in the present case. The ratio of law laid down in Kirpal Singh's case (supra), thus, would not strictly apply to the facts of the present case. Even the ratio of law laid down emerging from Shashi Kumar's case (supra) would not strictly apply. That issue would have made major difference in case the entire report was to get effected from the acquittal of the petitioner. CIVIL WRIT PETITION NO.13109 OF 2009 :{ 13 }: Here it may need to be appreciated that compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.. Nature of the order of compulsory retirement is not punitive. The compulsory retirement would depend upon the subjective satisfaction of the Government and this opinion is required to be formed on the basis of the entire service record. Indeed, while passing the impugned order of compulsory retirement, the respondents had taken into consideration the entire record of the petitioner and then apparently had decided that the petitioner would not be a fit person to be retained beyond 55 years of age. This was not by way of punishment and no stigma is attached to the same. Reference here may be made to Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, AIR 1992 Supreme Court 1020. It would be of advantage to list down the principles that were noted by the Hon'ble Supreme Court emerging from the discussion on the basis of various judgments. These principles are listed 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. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does CIVIL WRIT PETITION NO.13109 OF 2009 :{ 14 }: 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 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.” The Hon'ble Supreme Court further went on to observe in Baikuntha Nath Das (supra) that interference is permissible only on the grounds mentioned in (iii) above and this object is also discussed CIVIL WRIT PETITION NO.13109 OF 2009 :{ 15 }: in the judgment itself. A limited judicial scrutiny of an order of compulsory retirement would be on the ground of malafide, or that it is based on no evidence or that it is arbitrary in the sense and no reasonable person would form the requisite opinion on the given material, i.e., if it is found to be a perverse order. A view, thus, is possible that even if the portion of the report getting colour from the criminal case is excluded from consideration, the impugned order cannot be termed as perverse order and this view could be formed on the basis of the material that was before the competent authority to form an opinion and to pass the impugned order of compulsory retirement. Reference may also be made to the case of Bishwanath Prasad Singh Vs. State of Bihar and others, (2001) 2 Supreme Court Cases 305, where it is observed that Fundamental Rules 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 having completed a certain number of years of service on formation of an opinion that in public interest, it was necessary to compulsorily retire him. It is held that 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 pension actually earned and other retiral benefits. The Hon'ble