Civil Writ Petition No.1350 of 2011 : 1 : IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: SEPTEMBER 15, 2011 Om Parkash .....Petitioner VERSUS State of Haryana & 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.Harkesh Manuja, Advocate, for the petitioner. Mr.Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. Assistant Sub Inspector of Police Om Parkash serving in Haryana Police seeks quashing of enquiry report dated 16.11.2007 and the notice/order dated 14.12.2010., whereby he was served a three months notice for compulsory retirement on completion of 55 years of age. While working as ASI, the petitioner was deputed to investigate case FIR No.49 of 2007, registered under Sections 498- A/406 IPC at Police Station, Mohana, District Sonepat. The petitioner had conducted the investigation and arrested Sandeep, the accused- husband on 5.7.2007. Subsequently, mother and father were also Civil Writ Petition No.1350 of 2011 : 2 : arrested and were produced before the court. The complainant in this case wanted some more offences to be added in the FIR, so that the accused persons could be kept in confinement for a longer period. The petitioner, however, refused to oblige them. As per the petitioner, the complainant accordingly carried a grudge against him. The petitioner states that complainant had hatched a conspiracy and made a false complaint before State Vigilance Bureau, Rohtak making allegation of demand of bribe against the petitioner. On 11.7.2007, while the petitioner was standing at the shop of a Washerman near the bus stand to collect his dress, the complainant reached there and tried to offer him bribe. The petitioner, however, refused. The petitioner points out that the investigation in this case were complete before 11.7.2007 and so there was no need for him to ask or accept bribe. The Vigilance Bureau accordingly did not register any case against the petitioner. The complainant, however, approached the higher police officials, whereupon Senior Superintendent of Police initiated departmental enquiry against the petitioner. This enquiry was disposed of on 16.1.2008 and the petitioner was imposed punishment of stoppage of six future annual increments with permanent effect. Thereafter, the petitioner was reinstated, as perhaps he had been placed under suspension. The petitioner complains that the punishment imposed upon him was wrong and in this regard would make reference to the evidence of various witnesses to show that as per their version one person had forcibly tried to give money to the petitioner. The petitioner filed an appeal against the same, when the Director General has issued him a show cause notice on 9.9.2008. The Civil Writ Petition No.1350 of 2011 : 3 : petitioner filed reply and prayed for being exonerated. Thereafter, the petitioner approached this court and the respondents were directed to decide his appeal. Respondent No.2 then had decided to impose stoppage of four increments with cumulative effect instead of punishment earlier imposed. Thereafter the petitioner had approached this court through CWP No.19357 of 2009, which was dismissed on 16.12.2009. The petitioner has now been issued a show cause notice on 14.12.2010 putting him to notice that he is not to be retained after completion of 55 years of age. The petitioner accordingly has filed the present petition. Respondents have filed reply. It is pointed out that the petitioner conducted a faulty investigation in the FIR inasmuch he did not recover any dowry articles. It is alleged that petitioner had demanded bribe from the complainant and telephonic conversation between the complainant and the petitioner was recorded by the complainant. Thereafter raiding party was constituted. The petitioner had reached Bus Stand, Mohana. Complainant was asked to hand over demanded money to the petitioner, when the petitioner directed him for handing over bribe to Washerman. It is stated that the petitioner had identified the vigilance employee and so had asked the complainant to hand over the bribe money to the Washerman. For this, departmental enquiry was conducted against him, where petitioner was found guilty and imposed the punishment, as already noted. In this background, the respondents would justify their decision not to retain the petitioner in service, for which they had ample power under Rule 9.18 of the Punjab Police Rules (for short Civil Writ Petition No.1350 of 2011 : 4 : “the Rules”). As per the respondents, the appointing authority has absolute right to retire any Government servant on or after he has attained 55 years of age without assigning any reason. A corresponding right is also available to such employee to retire on completion of age of 55 years. Mr.Harkesh Manuja counsel for the petitioner would contend that order of compulsory retirement of any police officer has to be passed by Inspector General of Police with previous approval of the State Government, whereas the impugned notice and order have been issued by the Senior Superintendent of Police, who is not competent to pass such an order. In this regard, the counsel makes a reference to Rule 9.18 of the Punjab Police Rules. In support, the counsel has also made reference to the case of State of Haryana and others Vs. Thakur Dass, 1998 (1) RSJ 73, where this court has taken a view that power to order compulsory retirement of a police officer vests in Inspector General of Police and this power can be exercised subject to two conditions: that previous approval was obtained and adequate opportunity to make representation was given to the employees concerned. The counsel has also referred to A.S.I. Radhey Shyam Vs. Union of India and others, 2001(2) RSJ 172 to urge that where the order entails penal consequences, then such an order if passed without holding a regular departmental enquiry cannot stand. The order was held to be stigmatic as it was mentioned in the order that the services of the petitioner are no longer required because of his chequered service record. None of the submissions made by the counsel would Civil Writ Petition No.1350 of 2011 : 5 : impress me. In my view, Rule 9.18 (2) of the Rules is not attracted in this case. Rule 9.18(1) (c ) has apparently been invoked to pass the impugned order. Appointing Authority is given complete power to retire a person on or after he has attained age of 55 years by giving him not less than three months notice. This rule provides that notwithstanding anything contained in these rules, a retiring pension is granted to an officer- (a) who is permitted to retire from service after completing qualifying service for twenty-five years or such lesser period as may be prescribed, (b) who is compulsorily retired under sub-rule (2) after completing ten years' qualifying service; or (c ) who is retired by the appointing authority on or after he attains the age of 55 years; (d) who retires on or after attaining the age of 55 years. The Note appended under the Rule would further make it clear that the Appointing Authority has an absolute right to retire any Government servant on or after he has attained age of 55 years without assigning any reason. The Note reads as under:- “NOTE:- Appointing authority retains as absolute right to retire any Government servant on or after he has attained the age of 55 years without assigning any reason. A corresponding right is also available to such a Government servant to retire on or after he has attained the age of 55 years.” As per Rule 9.18 (2), Inspector General of Police has been empowered to compulsorily retire any police officer, other than those belonging to Indian Police Service or Haryana State Police Service, who has completed twenty five years of qualifying service without giving any reasons. Such officer is not entitled to claim any Civil Writ Petition No.1350 of 2011 : 6 : special compensation for his retirement. Rule 9.18 reads as under:- “9.18 (1) Notwithstanding anything contained in these rules, a retiring person granted to an officer- (a) who is permitted to retire from service after completing qualifying service for twenty-five years or such lesser period as may, for any class of officers, be prescribed; or (b) who is compulsorily retired under sub-rule (2) after completing ten years' qualifying service; or (c ) who is retired by the appointing authority on or after he attains the age of 55 years, by giving him not less than three months' notice; or (d) who retires on or after attaining the age of 55 years by giving not less than three months' notice of his intention to retire to the appointing authority. Provided that where the notice is given before the age of fifty-five years so attained, it shall be given effect to from a date not earlier than the date on which the age of fifty-five years is attained. NOTE: Appointing authority retains as absolute right to retire any Government servant on or after he has attained the age of 55 years without assigning any reason. A corresponding right is also available to such a Government servants to retire on or after he has attained the age of 55 years. (2) The Inspector-General of Police may, with the previous approval of the State Government, compulsorily retire any Police Officer, other than that Civil Writ Petition No.1350 of 2011 : 7 : belonging to Indian Police Service or Haryana State Police Service, who has completed twenty five years' qualifying service without giving any reasons. An officer who is so compulsorily retired will not be entitled to claim any special compensation for his retirement. Note:- The right to retire compulsorily shall not be exercised except when it is in the public interest to dispense with the further services of an officer, such as on account of inefficiency, dishonesty, corruption or infamous conduct. Thus the rule is intended for use- (i) against an officer whose efficiency is impaired but against whom it is not desirable to make formal charges of inefficiency or who has ceased to be fully efficient i.e., when an officer's value is clearly incommensurate with the pay which he draws but not to such a degree as to warrant his retirement on a compassionate allowance. It is not the intention to use the provisions of this rule as a financial weapon, that is to say the provisions should be used only in the case of an officer who is considered unfit for retention on personal as opposed to financial grounds; (ii) in cases where reputation for corruption, dishonestly or infamous conduct is clearly established even though no specific instance is likely Civil Writ Petition No.1350 of 2011 : 8 : to be proved. Note 2:- The officer shall be given an adequate opportunity of making any representation that he may desire to make against the proposed action and such representation shall be taken into consideration before his compulsory retirement is ordered. In all cases of compulsory retirement of enrolled police officers, the Inspector-General of Police shall effect such retirement with the previous approval of the State Government in accordance with the instructions, if any, issued by the Government on the subject from time to time. Note 3:- The officer, whose duty it would be to fill up the appointment if vacant, shall record his orders on the application to retire, which, if in vernacular, should be accompanied by a translation in English. If the officer who applies for pension, is permitted to retire, the application shall be forwarded with the pension papers.” The petitioner so far has been given only a notice that he is not fit to be retained in service. The notice is issued under Rule 9.18. It is not for compulsorily retirement as is being made out by the petitioner. The respondents have clarified in the reply that Rule 9.18 (2) applies in cases of compulsory retirement where sanction of the Government is required to be obtained before retirement, but the case of the petitioner does not fall under this Rule, but is an order of retirement under Rule 9.18(1). Civil Writ Petition No.1350 of 2011 : 9 : The submission that the order is stigmatic and, thus, could only have been passed after holding a departmental enquiry also appears farfetched. The facts in the case of A.S.I. Radhey Shyam (supra) were different as he was implicated in a criminal case and FIR had been registered, in which he was acquitted. Petitioner in this case was praying for his promotion. He was compulsorily retired, which was found to be as a matter of punishment. In present case, though the petitioner has been imposed punishment by way of departmental enquiry, but his challenge against this order has already been negated by this court when his writ petition was dismissed. Merely because a mention is made to the record of the petitioner where he is referred to as having a chequered record would not go to make the order stigmatic. In order to amount to a stigma, the order has to be in a language, which imputes something over and above mere unsuitability for the job. In fact, the courts always had to perform the balancing act between denial of right to continue in service while at the same time granting a person the right to challenge the termination/retirement when it is by way of punishment. The Hon'ble Supreme Court in Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, AIR 1992 Supreme Court 1020, has laid down various principles, one of it being that an order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion or misbehaviour. Such orders are passed on the subjective satisfaction of the Government and even the principles of natural justice have no Civil Writ Petition No.1350 of 2011 : 10 : place in the context of an order of compulsory retirement. The judicial scrutiny by the High Court is limited on the ground of malafide or where such an order is based on no evidence or that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, in short, if such an order is found to be perverse order. 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 one ordered under the fundamental rule was 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 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 Civil Writ Petition No.1350 of 2011 : 11 : 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.” The provisions of Rule 9.18 (1) thus can easily be held parallel or comparable to Fundamental Rule 56(j) of the Fundamental Rules, which has also conferred the Government or the appropriate authority, an absolute right though not an arbitrary one to retire a Government servant on attaining a particular age or on his completing a certain number of years of service on formation of an opinion that in the public interest it was necessary to compulsorily retire him. Such an order is neither a punishment nor a penalty with a loss of retiral benefits. As is noticed, compulsory retirement in public interest under the Service Rules (like 9.18(1)) is like premature retirement. It does not cast any stigma. The Government servant is Civil Writ Petition No.1350 of 2011 : 12 : entitled to earn pension and other retiral benefits. That is the distinction between Rule 9.18(1) and 9.18(2). So long as the opinion is formed to compulsory retire officer in public interest and this opinion is formed bonafide, the same can not ordinarily be interfered with by a judicial forum. Such an order is subject to judicial review on limited ground as noticed in Baikuntha Nath Das's case (supra) and these grounds are when the order being on malafide is based on no material or on collateral grounds or having been passed by an authority not competent to do so. It is only with the object of weeding out dead wood who have lost their utility for the administration that such enabling provision is made. It can be noticed that to judge the validity of an administrative order or a statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision maker could, on the material before him and within the frame work of law, have arrived at. The job of the court is only to consider whether relevant material has been taken into account or whether any irrelevant matter has been taken into account or whether the action was bonafide. The courts can also see if such decision was absurd or perverse but the courts cannot and would not go into the correctness of the choice made by the Administrator amongst the various alternatives open to him nor can the Court substitute its decision to that of the administrator. Recently Hon'ble Supreme Court in National Aviation Company of India Ltd. Vs. S.M.K. Khan, AIR 2009 SC 263= 2009 (5) SCC 732 has again considered this question in the context of a Civil Writ Petition No.1350 of 2011 : 13 : rule which permitted the competent authority to ask an employee to retire after he attains the age of 55 years on giving him three months notice without assigning any reason. The Court has observed as under:- “An order of compulsory retirement in pursuance of a rule/regulation which enables the competent authority to prematurely retire an employee, on the formation of a bona fide opinion that continuation of the employee in service will not benefit the institution or be in the interest of the institution (or will not be in public interest where the 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. It is neither a punishment nor considered to be stigmatic. Where the compulsory retirement, is not by way of punishment for a misconduct, but is an action taken in pursuance of a valid condition of service enabling the employer to prepone the retirement, the action need not be preceded by any enquiry and the principles of natural justice have no application. The unsatisfactory service of the employee which may include any persistent misconduct or inefficiency furnishes the background for taking a decision that the employee has become a dead wood and that he should be retired compulsorily. Such `compulsory retirement' is different and distinct from imposition of a punishment of Civil Writ Petition No.1350 of 2011 : 14 : compulsory retirement (or dismissal/removal) on a specific charge of misconduct, where the misconduct is the basis for the punishment. The difference is on account of two factors : Firstly, the employee on account of completing a particular age or number of years of service falls within 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 Civil Writ Petition No.1350 of 2011 : 15 : 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 relevant rule, rather than examining whether the order could also be construed as a punishment for misconduct- vide Baikuntha Nath Das v. Chief District Medical Officer [1992 (2) SCC 299], Allahabad Bank Officers' Association v. Allahabad Bank [1996 (4) SCC 504], I.K.Mishra v. Union of India [1997 (6) SCC 228], State of Uttar Pradesh v. Lalsa Ram [2001 (3) SCC 389] and M. L. Binjolkar vs. State of Madhya Pradesh [2005 (6) SCC 224]. The Hon'b'le Supreme Court has, thus, clearly drawn a distinction between compulsory retirement which is ordered as a punishment and order of compulsory retirement which is passed on the basis of unsatisfactory service and this may include any persistent misconduct or inefficiency which would furnish the background for taking a decision that the employee has become a dead wood. As observed in this case, any incidental reference to unsatisfactory service, or any remark in the context of explaining reasons for compulsory retirement under the relevant rule, in the letter of compulsory retirement is not to be considered stigmatic, even though it may be capable of being construed as an allegation of misconduct. Merely because mention was made to the service Civil Writ Petition No.1350 of 2011 : 16 : record being chequered, thus, would not mean that this order is passed by way of punishment and is to be construed as allegation of misconduct. The limited scope of judicial review in cases of compulsory retirement has again been emphasised by the Hon'ble Supreme Court in a recent decision reported as Piare Mohan Lal Vs. State of Jharkhand and others, AIR 2010 SC 3753=2010 (10) SCC 693. Reference can be made here to State of Gujrat & Anr. Vs. Suryakant Chunilal Shah, 1999(1) SCC 529, wherein it is noticed that dishonest, corrupt and dead wood deserves