IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH L.P.A. No.646 of 2009 (O&M) Date of decision: 24.7.2009 Dakshin Haryana Bijli Vitran Nigam (Ltd.) & others. -----Appellants Vs. Ram Kishan. -----Respondent CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. Praveen Gupta, Advocate for the appellants. ----- ADARSH KUMAR GOEL, J. 1. This appeal has been preferred against judgment of the learned Single Judge, declaring order of compulsory retirement dated 19.11.2003 against the respondent to be illegal with consequential benefits. 2. The respondent was appointed to the service of the appellants in the year 1970. He got his last promotion on 14.11.2000 as Under Secretary (Legal). Impugned order was passed on his reaching the age of 55 years. For passing the said order, service record of the last ten years was taken into account, which is as under:- LPA No.646 of 2009 “S. No. From To Assessment Integrity 1. 1.4.92 13.8.9 2 12.8.92 31.3.93 Good Good Sound No reason to doubt. 2. 1.4.93 31.3.94 Good No reason to doubt. 3. 1.4.94 31.3.95 Satisfactory/ Good No complaint. 4. 1.4.95 31.3.96 Good No complaint 5. 1.4.96 31.3.97 Sent to LR & not received back 6. 1.4.97 31.3.98 Good Nothing heard against. 7. 1.4.98 9.6.98 8.6.98 28.2.99 Less than three months. Good -- Known to be honest. 8. 1.4.99 28.9.9 9 22.9.99 31.3.00 Less than three months. Very Good. -- Having sound integrity 9. 1.4.2K 31.3.01 Good Honest 10. 1.4.01 31.3.02 Very Good Good 11. 1.4.02 31.3.03 -- Doubtful integrity 2 LPA No.646 of 2009 His is disobedience and dereliction of duty and many times warned him to be more careful in the discharge of his official duty in future. Above said reason inefficiency and corruption would not be tolerated in the Nigam. As such integrity as good cannot be ascertained, therefore, his integrity is doubtful and such type of official burden in the legal cell. These adverse remarks were conveyed to the officer & the comments to the reply is still awaited from the L.R., HVPNL, Panchkula.” 3. The respondent challenged the impugned order as being arbitrary and malafide. 4. Main contention raised in the writ petition was that the whole service record of the respondent was unblemished except for confidential report of the year 2002-03. He had been given appreciation certificates Annexures P-2 to P-7. He was given promotion in the year 2000. He was nominated as member of High Powered Committee for monitoring cases in the Hon’ble 3 LPA No.646 of 2009 Supreme Court. He had filed a complaint dated 9.12.2002, Annexure P-12 against respondent No.2 in the writ petition, who was his superior and was officiating as Legal Remembrancer of the appellant. On investigation by the Vigilance Department, the said respondent was repatriated. This was the reason for the adverse report in the year 2002-03. 3. The writ petition was contested by the appellant, mainly on the ground that the order of compulsory retirement could be passed on subjective satisfaction. The order had been passed on the basis of service pattern. The factum of the respondent having made complaint against his superior, on the basis of which he was repatriated, was not disputed. 4. Learned Single Judge held that the impugned order suffered from non-application of mind to the relevant facts namely that the confidential report of the year 2002-03 could be result of bias and other than that report, there was no adverse entry. The finding of the learned Single Judge is as under:- “As far as the argument of counsel for the petitioner that the petitioner was a whistle blower is concerned, the same is borne out from the record. As a result of the complaint filed by the petitioner, a scam involving payment for filing of appeals running into lacs of rupees was unearthed. It was found that appeals were being typed in the office of the Legal Remembrancer and money was being charged for typing with the help of fake bills of fake institutions. Although the Legal Remembrancer was not directly indicted but it is not disputed that he was 4 LPA No.646 of 2009 subsequently repatriated and an FIR was lodged against his subordinate. In the circumstances, the assertion that he was inimical towards the petitioner cannot be lightly discarded. As noticed above, a perusal of the adverse remarks also makes intriguing reading the integrity has been held to be doubtful not on the basis of any positive assertion but on the basis of a negative assertion that the integrity as good cannot be ascertained. Though in the written statement lots of detail regarding various negative aspects of the petitioner’s career have been detailed, yet it has not been denied that notwithstanding these details, in last 10 years his record has been uniformly good/very good except for the period 1.4.2002 to 31.3.2003 when admittedly the whole scam surfaced at the instance of the petitioner. An attempt has also been made to allege that in fact, the petitioner had made the complaint only as an attempt to pre-empt the adverse remarks made against him but, considering the fact that the complaint did not turn out to be unfounded and in view of the previous record of the petitioner, the same sounds very thin. It has also been asserted that the petitioner was imposed punishment of stoppage of two increments by order dated 16.7.1997 but this has been countered by arguing that after the said punishment, the petitioner was promoted as Under Secretary (Legal) on 14.11.2000. Thus, in my opinion, this case would be covered by the dictum of law laid down in Jagdish Singh Raghav’s case (supra), S.T. Ramesh’s case (supra), R.K. Panjetha’s case (supra) and M.S. Bindra’s case (supra). As far as Baikuntha Nath Das and another’s case (supra) is concerned, though the 5 LPA No.646 of 2009 proposition of law advanced therein is binding, yet in my opinion, the present is a case where the very ACR on the basis of which admittedly the impugned order of compulsory retirement has been passed, is, to say the least, controversial. As regards the punishment order of 1997 is concerned, one of the factors mentioned by the Hon’ble Supreme Court in Umedbhai M. Patel’s case (supra) was that a promotion tends to wash out an earlier punishment. Thus, on a conspectus of all the facts, it can be held that while passing the order of compulsory retirements, irrelevant aspects have not been eschewed from consideration, as held by the Hon’ble Supreme Court in Lt. Gen. Rajendra Singh Kadyan and another’s case (supra).” 5. We have heard learned counsel for the appellants. 6. Learned counsel for the appellants does not dispute that the respondent had made a complaint in the relevant year, on the basis of which, the Legal Remembrancer was repatriated and the said adverse report was written by the said Legal Remembrancer. It is also not disputed that there is no adverse entry after promotion of the respondent on 14.11.2000. In view of above, findings recorded by the learned Single Judge cannot be held to be erroneous. 7. It is well settled that the order of compulsory retirement is not a punishment and the order could be passed in public interest to chop off the dead wood after considering the overall service record. At the same time, even such an order is 6 LPA No.646 of 2009 not immune from judicial review, where the order is vitiated by non-application of mind to the relevant material. In the present case, in view of findings recorded by the learned Single Judge, there was valid basis for interference with the order of compulsory retirement. The order is based only on adverse report which was vitiated by bias. 8. We have also been informed that the respondent reached the age of superannuation in the year 2006 and even after the order of learned Single Judge, he will not be reinstated but will only be entitled to benefits for a period of three more years, intervening the date of order of compulsory retirement and date on which he reached the age of superannuation. 9. In view of above, we do not find any ground to interfere with the view taken by the learned Single Judge. 10. The appeal is dismissed. (ADARSH KUMAR GOEL) JUDGE July 24, 2009 ( DAYA CHAUDHARY ) ashwani JUDGE 7