CWP No.393/2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No.393/2008 Date of Decision:4.3.2008. Shamsher Singh ............. Petitioner Versus State of Haryana and others. ..............Respondents. CORAM: HON'BLE MR.JUSTICE JASBIR SINGH. HON'BLE MR.JUSTICE JASWANT SINGH. Present:- Mr.Gunjan Mehta,Advocate for the petitioner. ***** JASWANT SINGH,J. The petitioner, a Sub Inspector of Police, has prayed for quashing of notice dated 23.10.2007 (Annexure P-15), whereby the appointing authority- Superintendent of Police, Ambala has issued a notice for retirement (compulsory) under the relevant rules and has further prayed for quashing of the letter dated 20.8.2007 (Annexure P-12) vide which representation of the petitioner against the adverse remarks of integrity doubtful for the period from 25.4.2006 to 31.3.2007 has been dismissed. The brief facts of the case are that the petitioner, a Sub Inspector of Haryana Police alleges that he has an unblemished service record, except one sole adverse entry for the period from 25.4.2006 to 31.3.2007, and he has earned several commendation certificates during his service for displaying indomitable courage, bravery and devotion to duty. His date of birth is 19.1.1953 and date of superannuation is 18.1.2011. He CWP No.393/2008 2 further alleges that a frivolous enquiry was initiated against him. He was served with a charge sheet dated 20.9.2006 (Annexure P-2). The Enquiry Officer submitted his report (Annexure P-3) in which he was found innocent. The punishing authority did not agree with the findings of the Enquiry Officer and therefore, proceeded to issue a show cause notice dated 19.12.2006 (Annexure P-4) containing detailed reasons for not agreeing with the findings recorded by the Enquiry Officer. The show cause notice also disclosed the proposed penalty of stoppage of next four annual grade increments with cumulative effect keeping in view the findings of gross negligence. The petitioner filed his reply dated 19.12.2006 (Annexure P-5) to the same. Taking a lenient view vide order dated 19.1.2007 (Annexure P- 6), the punishing authority, Superintendent of Police, Ambala (Respondent no.4) imposed the penalty of stoppage of one increment without cumulative effect. The petitioner preferred statutory appeal (Annexure P-7) before the Inspector General of Police,Ambala, who vide his order dated 19.6.2007 (Annexure P-8) rejected the same. Thereafter, the petitioner filed revision before the Director General of Police, which is still pending. The petitioner was also departmentally proceeded against in another charge sheet dated 16.10.2007 (Annexure P-17). The Enquiry Officer submitted his report (Annexure P-18) , finding him innocent. Dis- agreeing with the same the punishing authority issued another show cause notice dated 23.2.2007 (Annexure P-19) containing detailed reasons for not agreeing with the report of the Enquiry Officer and proposing penalty of stoppage of one annual increment without cumulative effect. After considering his reply dated 7.3.2007 and personal hearing, another order of punishment dated 23.3.2007 (Annexure P-21) was passed inflicting the CWP No.393/2008 3 proposed penalty of stoppage of one increment without cumulative effect. The petitioner thereafter filed an appeal against the punishment order dated 23.3.2007 before the Inspector General of Police, the appellate authority. No decision has yet been taken on the same. During all this while, the Superintendent of Police, Ambala, the reporting officer of the petitioner recorded an adverse ACR for the year 2006-07. The same was conveyed to him vide letter dated 15.6.2007 (Annexure P-10). The same is reproduced as under:- 1 Honesty Doubtful 2 Moral Character Not good 3 Trustworthiness Unreliable 4 Guilt, if any and whether the attention of the concerned officer was drawn towards the same or any other letter. Awarded penalty on two occasions for negligence in investigation.” He filed a representation (Annexure P-11) for expunging the abovesaid adverse remarks, which was rejected vide order dated 20.8.2007 (Annexure P-12) by the appellate authority. He then filed another representation (Annexure P-13) before the Director General of Police, Haryana for expunging the adverse remarks and against the order dated 20.8.2007 of the appellate authority. The petitioner was informed by the Superintendent of Police, Ambala vide his letter dated 4.9.2007 that as per the instructions issued by the Director General of Police,Haryana, vide his office letter dated 23.8.2006, there was no provision for entertaining a second appeal/representation against the adverse remarks. Thereafter, the petitioner submitted a memorial (Annexure P-14) before the Home Secretary/ Government. The same is alleged to be pending decision. It is pertinent, for the adjudication of the present case to CWP No.393/2008 4 reproduce Rule 9.18 of Punjab Police Rules,1934 (as applicable to State of Haryana), which is as under:- “9.18 (1) 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 of as may, for any class of officer be prescribed; or (b) who is compulsorily retired under sub-rule (2) after completing twenty-five 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 note earlier than the date on which the age of fifty-five years is attained. NOTE: Appointing authority retains an 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 CWP No.393/2008 5 the age of 55 years. (2) The Inspector-General of Police may, wit the previous approval of the State Government, compulsorily retire any Police Officer, other than an officer 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 exercise when it is in the public interest to dispense with the further services of an officer on grounds such as inefficiency, dishonestly, 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 no the intention to use the provisions of this rule as a financial weapon that is to say the provisions should be used in only the case of an officer who is considered unfit for retention on personal as CWP No.393/2008 6 opposed to financial grounds. (ii) In case where reputation for corruption, dishonesty or infamous conduct is clearly established even though no specific instance is likely 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 only 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 the post 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.” In the backdrop of abovesaid facts in the writ petition, learned counsel for the petitioner has raised the following three contentions:- 1. That the sole and stray adverse entry for the year 2006-07 cannot be CWP No.393/2008 7 taken into consideration, in view of his otherwise unblemished and commendable service record, for prematurely/ compulsorily retiring him. In support thereof, he has relied upon Jaspal Singh v. State of Haryana and others 1995(4) SCT 302. 2. As per the provisions of Rule 9.18(1)(c) read with Note 2 of the Punjab Police Rules, it was incumbent upon the appointing authority to form an opinion to compulsorily retire him after giving him adequate opportunity of making representation before the said compulsory retirement. In support of this, learned counsel for the petitioner has relied upon Raj Kumar Mehta v. State of Haryana and others 1997(1) RSJ 832. 3. The Government has not formed any opinion in public interest while taking the impugned action. Reliance has been placed upon Badrinath v. Government of Tamil Nadu and others 2000(4) RSJ 356. The petitioner has not advanced any argument to challenge the appellate order dated 20.8.2007 (Annexure P-12) vide which his representation against the aforesaid adverse remarks was rejected. In the facts of the present case, it is seen that integrity of the petitioner has been doubted in the Annual Confidential Report for the period from 25.4.2006 to 31.3.2007. Jaspal Singh's case (supra) relied upon by the learned counsel for the petitioner does not advance the petitioner's case at all. The facts in the reported case were that Jaspal Singh was retired at the age of 55 years vide order dated 27.11.1993, on the basis of two adverse reports for the years 1984-85 and 1985-86, ignoring the fact that subsequently he had been promoted on the basis of criteria of merit- CWP No.393/2008 8 cum-seniority (selection) as Sub Inspector vide order dated 14.12.1989. Thus, the adverse remark recorded prior to his promotion had lost its sting. The circumstances in the present case are different. The integrity of the petitioner has been doubted in the recent/preceding years and he had also been punished twice in the recent past for showing gross negligence in conducting investigation. Therefore, the first argument of the learned counsel for the petitioner is rejected. A perusal of rule 9.18(2), reproduced hereinabove reveals that besides the power of appointing authority/respondents to retire an employee on attaining the age of 55 years under rule 9.18(1) (c) of the Punjab Police Rules, Volume I, read with rule 5.32 of the Punjab Civil Services Rules, another provision under rule 9.18(2) has been provided for the Head of the Police Force to compulsorily retire with the previous approval of the State Government the stated police officers who have completed 25 years of qualifying service without disclosing any reason. The rule is intended to be used for inefficient officers against whom it is not desirable to make formal charges of inefficiency or who have ceased to be fully efficient or who have reputation for corruption, or against whom dishonest or infamous conduct is established even though no specific instances are likely to be proved. It is evident that this rule has been provided by the rule making authority keeping in view the nature and exigencies of the police services and the propensity of police officers. It is in these circumstances that when the power is exercised under rule 9.18(2) by the Head of Police Force that Note 2, which provides for grant of adequate opportunity for making representation before taking the proposed action of compulsory retirement comes into play. In Raj Kumar Mehta's CWP No.393/2008 9 case (supra) the decision to compulsorily retire had been taken under rule 9.18(2) on having completed 25 years of qualifying service and therefore, on facts the judgment is distinguishable and not applicable to the facts of the present case. In the present case it is seen that the appointing authority of the petitioner has, in exercise of its power under rule 9.18(1) (c) read with rule 5.32 of the Punjab Civil Services Rules, has taken a decision to prematurely retire on the petitioner's having attained the age of 55 years and on the basis of adverse ACR and punishments. Reading of the rules discloses that the appointing authority retains an absolute right to retire a police officer after he has attained the age of 55 years without assigning any reason. This power, of course, has to be exercised in public interest, which has not been defined anywhere but has been elucidated by process of judicial interpretation to mean that only honest and efficient officers are to be retained in service while dishonest, corrupt, deadwood are to be weeded out of government service. Efficiency and honesty is to be evaluated on the basis of entire service record of an employee including the Annual Confidential Reports. It is a settled proposition of law that compulsory retirement/ premature retirement, on attaining the age of 55 years, by the appointing authority is not by way of punishment. It does not caste any stigma and has to be based on the objective consideration of the entire service record of the employee with greater emphasis on the Annual Confidential Reports of the later periods. For these observations, we find support from the judgments of the Hon'ble Supreme Court in Shri Baikuntha Nath Dass and another v. Chief District Medical Officer, Baripada and another 1992(2)RSJ 308 and State of Gujarat and another v. Suryakant Chunilal Shah, (1999) 1 CWP No.393/2008 10 SCC 529. The judgment cited by the learned counsel for the petitioner in Badrinath's case (supra) does not in any manner support the petitioner. In the facts of the present case we find the action of the appointing authority is as per rules and is neither arbitrary or mala fide and is based on sufficient material on record. Therefore, the second and third contentions of the learned counsel for the petitioner are also rejected. In view of the aforesaid discussion, we find no merit in the writ petition and therefore, the same is dismissed in limine. (Jaswant Singh) Judge 4.3.2008 (Jasbir Singh) joshi Judge