IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No. 12959 of 2009 DATE OF DECISION : AUGUST 27, 2009 AJMER SINGH RAMANA ....... PETITIONER(S) VERSUS STATE OF PUNJAB & ANR. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: Mr. Rajiv Atma Ram, Sr. Advocate, with Mr. Vikas Kuthiala, Advocate, for the petitioner(s). Ms. Charu Tuli, Senior DAG, Punjab. AJAI LAMBA, J. (Oral) This petition under Articles 226/227 of the Constitution of India has been filed praying for issuance of a writ in the nature of certiorari Civil Writ Petition No. 12959 of 2009 2 quashing order dated 14.5.2008 (Annexure P-1), order dated 20.8.2009 (Annexure P-5), and Annual Confidential Reports for the period 28.4.2000 to 1.4.2001 and 1.4.2001 to 10.11.2001. Further prayer made is for release of all consequential benefits that would flow from allowing the claims of the petitioner, noticed above. Vide order dated 14.5.2008 (Annexure P- 1), endorsed on 23.5.2008, while exercising powers under clause (a) of sub-Rule (1) of Rule 3 of the Punjab Civil Services (Premature Retirement) Rules, 1975 (for short 'the Rules'), the petitioner has been prematurely retired with immediate effect. Annexure P-5 dated 20.8.2009 is an order passed by the respondents, vide which the representation/memorial of the petitioner in challenge to order (Annexure P-1), has been rejected. Learned counsel for the petitioner confines the prayer only to challenge to the impugned orders (Annexures P-1 and P-5). The facts, in brief, are that the petitioner joined as Assistant Sub Inspector on 28.4.1976 and was promoted as Sub Inspector in the year 1984. The petitioner was promoted as Inspector in the year 1989, as Deputy Civil Writ Petition No. 12959 of 2009 3 Superintendent of Police in the year 1991 and Superintendent of Police in the year 1997. On 7.5.2007, a notice was given to the petitioner proposing premature retirement. The petitioner, opposing the same, filed reply. Personal hearing was also given to the petitioner. The comments of the Director General of Police, Punjab, were called for, which were submitted on 4.2.2008. The impugned order (Annexure P-1) was passed on 14.5.2008. The petitioner made a representation/ memorial (Annexure P-2) against the said order on 26.5.2008. Concerned and aggrieved by the stigmatic comments/observations made in the impugned order (Annexure P-1), the petitioner also filed CWP 9547 of 2008. While dealing with the matter, on 14.7.2009, this Court had passed the following order:- “Learned counsel for the petitioner states that the petitioner has been retired prematurely, however, while passing the order (Annexure P-1), at issue, which is clearly stigmatic. Learned counsel has referred to the order in extenso. Learned counsel has relied on Shri O.P. Kapoor vs. state of Punjab & another, 1981(1) SLR 577 to contend that Civil Writ Petition No. 12959 of 2009 4 if the order is penal while compulsorily retiring an officer, without holding an enquiry, it is rendered illegal. Learned counsel has also relied on Major Singh vs. state of Punjab & others 2000(5) SLR 141. Learned counsel has also referred to Annexure P-5 i.e. precis of ACRs to state that for the period 2000-2001, the Reviewing officer had not agreed with the remarks of the SSP. Learned counsel for the petitioner has also submitted that the ACRs for the period post 2005 have not been reproduced which are outstanding and very good and would have been relevant for taking a decision in regard to premature retirement. Learned counsel for the respondent State prays for time to take specific instructions in the above regards. Adjourned to 29.7.2009.” When the matter was taken up on 29.7.2009, learned counsel for the respondent- State informed the Court that the representation/memorial against the impugned order of premature retirement (Annexure P-1) had been received from the petitioner, which was under active consideration of the respondents. Service record of the petitioner, including the Annual Civil Writ Petition No. 12959 of 2009 5 Confidential Reports, had been called for to consider the case of the petitioner afresh. Considering the stand of the respondents, the respondents were directed to take a decision on the representation/memorial of the petitioner within 15 days and the above said writ petition (CWP 9547 of 2008) was disposed of on 29.7.2009. Learned counsel for the petitioner contends that the order (Annexure P-1) is clearly stigmatic. While considering the issue of premature retirement, the respondents could not have incorporated the offending material in the order. It amounts to exercise of power under Article 311 of the Constitution of India. In the above regards, learned counsel for the petitioner has relied on two judgments; namely, Shri O.P. Kapoor vs. State of Punjab and another, 1981(1) SLR 577, and I.N. Saksena v. The State of M.P., AIR 1967 Supreme Court 1264. Learned counsel for the respondent-State, in response to a specific query of the Court, as to whether the contents of the order (Annexure P- 1) are stigmatic or not, only states that the order details the record of the petitioner and reports received from the authorities. So far as the wording of the order is concerned, learned Civil Writ Petition No. 12959 of 2009 6 counsel for the respondent-State has not been able to say that it is not stigmatic. Be that as it may, learned counsel for the respondent-State relies on the judgment of the Hon'ble Supreme Court of India in Prabodh Sagar v. Punjab State Electricity Board and others, (2000) 5 Supreme Court Cases 630. It has been contended that the observations made in the order of premature retirement, were upheld. I have heard the learned counsel for the parties and have gone through the documents to which my attention has been drawn. So far as the relevant rule in relation to premature retirement is concerned, relevant portion of Rule 3 of the Rules, reads as under:- “3. Premature retirement. - (1) (a) The appropriate authority shall, if it is of the opinion that it is in public interest to do so, have the absolute right, by giving an employee prior notice in writing, to retire that employee on the date on which he completes twenty-five years of qualifying service or attains fifty years of age or any date thereafter to be specified in the notice. xx xx xx xx xx xx xx xx xx xx” Now, to consider the judgments cited by the learned counsel for the petitioner, reference Civil Writ Petition No. 12959 of 2009 7 may first be made to the judgment in Shri O.P. Kapoor's case (supra). The judgment, when extracted, reads as under:- “This petition under Article 226 of the Constitution of India deserves to succeed for the short reason that the impugned order dated November 5, 1979 (Annexure P-4) of retirement of the petitioner is, on the face of it, a penal order which has been passed without holding any regular enquiry, etc. against the petitioner. This is how the relevant part of the order reads :- “And whereas on consideration of your record of service undersigned is of the opinion that it is in public interest not to grant you extension in service beyond the age of 55 years as your honesty was doubted in the year 72-73.” It is the undisputed case of the parties that no show-cause notice was issued or enquiry of any sort was held against the petitioner. Though Mr. Sayal, learned counsel for the respondents points out that since the passing of this order the words “as your honesty was doubted in the year 72-73” have been substituted vide order dated April 23, 1980, of the Registrar, Cooperative Societies, yet this device adopted by the respondents, to my mind, does not remove the stigma Civil Writ Petition No. 12959 of 2009 8 that has been attached to the petitioner by the impugned order. 2. In the light of the discussion above, I allow this petition and quash the order Annexure P-4. However, it do not debar the authorities from passing proper and legal order in accordance with law. I pass no order as to costs.” A perusal of the above portion indicates that the petitioner, in the aforesaid case, was retired. The order of retirement was termed as penal by the petitioner with the contention that no regular inquiry had been held and, therefore, the order was bad in law. Since, no show-cause notice had been issued in regard to the stigmatic portion of the order to the effect “as your honesty was doubted in the year 72-73”, this Court held that although the said words had been substituted vide a subsequent order (of 23.4.1980), yet it did not remove the stigma that had been attached to the petitioner by the impugned order. Accordingly, the petition was allowed and the impugned order was quashed. The other judgment, to which reference has been made, is I.N. Saksena's case (supra). Paras 6 and 7 of the judgment are required to be considered, in the context of the present case. Paras 6 and 7 read as under:- Civil Writ Petition No. 12959 of 2009 9 “6. The first point that the appellant has raised is that the order in question requiring him to retire cast a stigma on him and therefore it amounted to removing him from service and action under Art. 311 was required. In this connection reliance has been placed on Jagdish Mitter v. Union of India AIR 1964 SC 449. In that case the order was in these terms:- "Shri Jagdish Mitter, a temporary 2nd Division Clerk of this office having been found undesirable to be retained in Government service is hereby served with a month's notice of discharge with effect from November 1, 1949." It was held that when the order referred to the fact that Jagdish Mitter was found undesirable to be retained in Government Service, it expressly cast a stigma on him, and in that sense must be held to be an order of dismissal and not a mere order of discharge. This case has been recently followed in the State Of U.P. v. M. M. Nagar, C.A. No.997 of 1965, D/-5-1-1967 : (reported in AIR 1967 SC 1260.) There also the order in express terms contained words which cast a stigma on the Government servant who was compulsorily retired and it was held in those circumstances that the order was in fact an order of removal from service. Civil Writ Petition No. 12959 of 2009 10 This Court has consistently held that where, the order directing compulsory retirement expressly contains words which cast a stigma on a Government servant, the order is equivalent to an order of removal and action under Art. 311 is necessary. But we asked learned counsel for the appellant to point out any case of this Court where in the absence of any express words in the order itself casting stigma on a Government servant, this Court has held that the order of compulsory retirement amounts to removal. Learned counsel was unable to refer to any such case. But what he argues is that though the order in question in this case contains no words from which any stigma can be inferred to have been cast on the appellant, we should look to the memorandum, which is referred to in the order and then infer that a stigma was cast on the appellant because the memorandum at the end of Para. 5 says that the power to retire will normally be exercised to weed out unsuitable employees after they attain the age of 55 years. It is urged that we should read those words in the order retiring the appellant from December 31, 1963. 7. We are not prepared to extend the decisions of this Court on this aspect of the matter in the manner contended for Civil Writ Petition No. 12959 of 2009 11 by the appellant. Where an order requiring a Government servant to retire compulsorily contains express words from which a stigma can be inferred, that order will amount to removal within the meaning of Art. 311. But where there are no express words in the order itself which throw any stigma on the Government servants we cannot delve into Secretariat files to discover whether some kind of stigma can be inferred on such research. Besides, Para. 5 of the memorandum is obviously in two parts. The first part lays down that "notwithstanding anything contained in the fore-going paragraphs, the appointing authority may require a Government servant to retire after he attains the, age of 55 years on three months' notice without assigning any reason." There is no stigma here. The second part to which the appellant refers is nothing more than a direction from Government to the appointing authority that it will not use the above power except to weed out unsuitable employees after they have attained the age of 55 years. When, therefore, the order in question refers to the memorandum it really refers to the first part of Para. 5 wherein power is given to the appointing authority to retire a Government servant after he Civil Writ Petition No. 12959 of 2009 12 attains the age of 55 years on three months' notice without assigning any reason. It may be mentioned that the order assigns no reason. In the circumstances we hold that as the order does not expressly contain any words from which any stigma can be inferred it cannot amount an order of removal. What the appellant wants us to hold is that the mere fact that a Government servant is compulsorily retired before he reaches the age of superannuation is in itself a stigma. But this its against the consistent view of the Court that if the order of compulsory retirement before the age of superannuation contains no words of stigma it cannot be held to be a removal requiring action under Art. 311.” (Emphasis supplied). From the above extracted portion, it follows that while referring to the judgment in Jagdish Mitter v. Union of India, AIR 1964 SC 449, mere words “having been found undesirable to be retained in Government service”, were found to be stigmatic and, in that sense, the order was held to be an order of dismissal and not merely an order of discharge. Further, propounding the law, the Hon'ble Supreme Court of India has held that where an order requiring a Government servant to retire Civil Writ Petition No. 12959 of 2009 13 compulsorily, contains express words from which a stigma can be inferred, that order will amount to removal within the meaning of Article 311 of the Constitution of India. So far as the judgment cited by the learned counsel for the respondent-State in Prabodh Sagar's case (supra) is concerned, I find that the judgment is not on the issue. The Hon'ble Supreme Court of India was not considering whether the observations/words in the order were stigmatic or not, and their impact, and therefore, the judgment cannot be considered as law on the issue that has been raised before me, for consideration. So far as the impugned order (Annexure P- 1) is concerned, the following has been incorporated in the order, which has been termed to be stigmatic by the learned counsel for the petitioner:- “7. Whereas, the DGP, Punjab vide his letter No.3411/Con.SA-I(II), dated 4.2.2008 has sent copy of letter No.2761/ST dated 23.9.2007 of SSP/Bathinda on the work and conduct of Sh. Ajmer Singh Ramana, PPS, SP and stated that:- Special report on the work and conduct of Sh. Ajmer Singh Ramana was Civil Writ Petition No. 12959 of 2009 14 called from SSP/Bathinda. After examining the special report, it is stated that the officer has been described as professionally incompetent. He does not have the capacity/ability to perform sensitive duties and does not take interest in his work. The dealing of the officer with the subordinate employee specially ladies and behaviour with senior officers and also the public in general was found to be not good. There was a common talk amongst the employees that the officer had been taking bribe from subordinates for giving them lucrative posting. Instances have also been detailed in the report about his working, which are self-explanatory. Sh. Varinder Kumar IPS the then SSP/Bathinda vide D.O. letter had also depicted Sh. Ajmer Singh Romana as professionally incompetent, inefficient and indulging in petty corruption and his behaviour towards subordinates was not very good. SSP/Bathinda has graded him as below average.” The DGP, Punjab has further stated that he agree to the above mentioned special report of SSP/Bathinda.” A perusal of the above portion leaves no measure of doubt that the impugned order (Annexure Civil Writ Petition No. 12959 of 2009 15 P-1) conveys that the petitioner was professionally incompetent; the petitioner does not have the capacity/capability to perform sensitive duties; the petitioner does not take interest in work and the dealing of the petitioner with subordinate employees, especially ladies, senior officers and also public in general, was found to be not good. The order further indicates that the petitioner had a reputation of taking bribe from subordinates for giving them lucrative posting and the petitioner was inefficient and indulged in petty corruption. In my considered opinion, the observations extracted above, are clearly stigmatic. Having considered the facts and circumstances of the case in the context of judgments, portions from which have been extracted above,viz. Shri O.P. Kapoor's case (supra) and I.N. Saksena's case (supra), I am of the considered opinion that the respondents could not have expressed the words from which a stigma can be inferred in the order of premature retirement. The impugned order (Annexure P-1), under the circumstances, tantamounts to an order of removal within the meaning of Article 311 of the Civil Writ Petition No. 12959 of 2009 16 Constitution of India. The contention of the learned counsel for the respondent-State to the effect that it is only reproduction from record and reports, would not justify passing of a stigmatic order, while considering the issue of premature retirement. The impugned order (Annexure P-1) is a document issued by the employer to the petitioner and would carry along with it a blemish, a disfigured past record and disgrace. It would permanently taint the petitioner in the context of the words used. A perusal of the impugned order (Annexure P-1) shows that the same has been passed on account of the alleged conduct of the petitioner, as conveyed by the words extracted above. This is clearly not permissible in law in so much as, in the garb of order of premature retirement, the petitioner has been dismissed. In such circumstances, the impugned order (Annexure P-1) is injudicious, unreasonable, illegal and arbitrary. The other impugned order (Annexure P-5) does not delete the stigma, rather endorses the adverse comments against the petitioner and, therefore, is on the same footing, hence not Civil Writ Petition No. 12959 of 2009 17 sustainable in law. In view of the above, this petition is allowed. Impugned orders dated 14.5.2008 and 20.8.2009, Annexures P-1 and P-5, respectively, are hereby quashed. However, it is made clear that the authorities would not be debarred from passing an appropriate and legal order, in accordance with law. Learned counsel for the petitioner has pointed out that the date of superannuation of the petitioner is 31.8.2009. This fact shall be kept in mind by the respondents while dealing with the issue. August 27, 2009 ( AJAI LAMBA ) Kang JUDGE 1.To be referred to the Reporters or not? Yes 2.Whether the judgment should be reported in the Digest?