82 S CWP N021197 of2008 In the HighCourt ofPunjaband Haryanaat Chandigarh Dateofdecisionl 27092010 1 CWP No21197 of2008 DavinderSinghASI Petitioner Versus StateofHaryana and others 1 l 2 CWP NoA76 of2009 0 C DavinderSinghASI Petitioner D Versus I StateofHaryana and others Z CORAM HONBLE MR JUSTICE PERMOD KOHLI Present MrAK Bura Advocate for thepetitioners MlRS Kundu AddlAG Haryanafor the c8 PERMOD KOHLI J em Z These two writ petitionshave been filed challengingthe Om adverse Annual Confidential Reportsfor the pcriod 2642006 to 31032007 vide order dated29052008 4nnexure139in CWP No21197 of 2008 and the communicationdated2422008 Annexure Pe4 and the 460 order of compulsory retirementdated02Ol 2009 0AnnexurePv61in CWP NoA76 of2009 Facts Ieading to thefilingofthese two writ petitionsare briefly noticedhereunder Petitioner was appointed as a Constable on 12121978 111 Suresh Kumar 2014.04.09 12: 37 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 83 l 0 CWP No21197 of2008 2 DistrictBhiwani It is statedthat in his longtenure of 29 yearsof service he hasbeen awardedas many as 31 commendationcertiflcatesincluding two duringthe periodadverse reportshave been recorded him ie 26042006 to 31032007 Petitioner hasbeen the reportsrecorded in his service recordvide communicationdated 2052007 Thepctitionermade a againstthe aforesaid adverseremarks proper channel vide Annexure P2e This m standsrejected vide memo dated29052008 lnnexure P C2 0 bya noIspeakingorder which is subjectmatter of challengealongwith theadverseentryin CWP No1197 of 2008 While this writ petition was the petitionerhas been served with a Show Cause Notice I AnnexurePe2 with CWP NoA76 of 20099proposing to retire Z himin publicinterestundertheprovisions ofSub Rule 621ofRule 98 629 ofthePunjabPolice Rules 1934 as to the StateofHaryana and C amendedfrom time to time He was asked to submit his replywithin 15 c8 days In response to the aforesaid Show Cause Notice the petitioner submitted a detailed replythrough proper channel vide Annexure P3 with Wmp 9 CWP NoA76 of 2009 The Director General of Police Haryanavide his V order dated23122008 Pe4 with CWP NoA76 of 20099ordered retirement of the petitioner and forwarded the same to the Governmentfor approval as required under Rule 918 29of PunjabPolice Rules1934 This order was directed to be communicatedto the petitioner ee vide letter dated 3122008 P5 with CWP NoA76 of 20099 the petitionerstands retired with effect from 31 122008 vide a order dated02022009 Pe6 with CWP NoA76 of 20099The Show Cause Notice and the order of compulsory retirement Suresh Kumar 2014.04.09 12: 37 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 84 CWP N021197 of2008 3 11 41 aresubject matter of challenge in CWP NoA76 of2009 Common groundsto the adverse reportsand retirementhavebeen in thesewrit petitions It is averredthatthepetitioner was posted as Incharge Railway Police Post Bhiwani in the month of November 2006 where one Suraj Mal Head Constable Belt N0522 was workingunder him It is alleged that Suj Mal was not workingsincerely The petitionerrecorded his 1 absenceand for this reason he becameinimical to petitionerIt is hlrther t 0 stated that the petitioner was on leave for a dayw 11 22006 to 12122006 and duringthis periodSurajMal instigated one Jai Singhson I D of Surat SinghCaste Sansi to Iodge a complaintagainstthepetitionerOn I the complaintof Jai Singh a First Information ReportNoA dated Z 0302007 under Sections344 383 and 34 of the Indian Penal Code was at Police StationGRPHisar One InspectorCIA Om Parkash t I was entrustedits Petitioner sought bail which 021 was grantedby the leamed SessionsJudgeBhiwani A petitionunder Section 439 629Cr2 for cancellation of the bail was Z dismissed by the HighCourt as withdrawn After the the r petitioner was not named as an accusedin the flnal report submittedto the Court under Section 173 CrC nor he was summonedbythe Court It 1S also statedthat a enquiry was orderedagainst the petitionerOne Ranvir SinghDSP who conducted the enquiryfound 960 thepetitioner innocent The petitionerstatedthat the adverseremarksin his ACR are incorrect and not basedon anymaterial From the perusalof the memo dated 23052007 indicating adverseremarksagainstthe petitioner it appearsthat a referenceis madeto FIR No dated03012007 which was Suresh Kumar 2014.04.09 12: 37 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 1 85 17 CWP No21197 of2008 4 C againstthe petitioner Further reference is made to two enquiries initiatedagainst the petitioner and thepetitioner has beenadvised to remove these defects Petitioner submitted a detailed againsthis adverseremarkswhich stand vide memo dated29052008 The order of rejectionof is totallynone speaking No reason exceptdevoid of any merit have been communicated The petitioner was never made an accused in the FIR 1 againsthim In the chargesheet in the Court even the 0 other accused againstwhom the chargesheet was filed in the Court of 0 Chief Judicial MagistrateBhiwani were vide judgmentdated I C 06122008 Even in the also the petitioner was I exoneratedby the EnquiryOfficer The PunishingAuthority Z with the reportof theEnquiryOfficer issued a Show Cause Notice to the petitionerproposing to award of stoppageof five future 01 increments with permanenteffect Petitioner submitted his replyto the Z c8 Show Cause Notice The PunishingAuthorityhowever awarded the of stoppageof one ture incrementwith pennanenteffect vide 2 Z his order dated 17102008 Aggrievedof the award of the Ll petitionerpreferred an appealbefore No2 and on hearingthe petitioner in person and considerationof the record appealof thepetitioner was acceptedand the of stoppageof one annual grade incrementhas been reducedto the of Censure vide order dated 1672008 P5 with CWP No21197 of20089 One of the of the petitioneragainsthis adverse ACR is that the adverse report has been recorded in violation of the Govemment instructions dated 12121985 The compulsory retirement Suresh Kumar 2014.04.09 12: 37 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 86 CWPNo 21197 of2008 5w 1 order by the is also solelybased upon the FIR againsthim the adverseACR andthe In replyto both the writ petitionsthe pleais almost common Whileadmitting the fact that thepetitioner was not sent to trial in FIR NoA dated03012007it was concededthat thepetitioner was exoneratedbythe Offlcer in the Enquiryinitiated againsthim Howeverwith a view to justifythe action againstthe petitionerit 1S P that the petitioner was chargesheetedin another In one case his annualincrement was stopped with permanent effect videthe memorandum 0 dated09012008 Referenceis also madeto another Sled byone I D Narain Dutt son of GanpatRam againstthe petitionerallegingthat the I did not take any action on his complaint of theft ofornamentsand Z the accused to escapeand thus he has tarnished the imageof the 7 Police Haryana CE Adverseremarksmadeagainstthepetitioner vide Annexure P c8 1 for theperiodfrom 2642006 to 31032006 are as under l9 S7 Z 39 Moral courageand readinessto exposethe O of subordinates Lacking 649 Reputatiion for fair dealingwith thepublic and accessibility to thepublicNot proper 9 Personality 8 initiative Not proper eeee 6109Powerofcommai Loose 6111Interestin modernmethods and modernpolice methodsl Does not possess Suresh Kumar 2014.04.09 12: 37 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 87 17 CWP No21197 of2008 6 121 Preventivec detectiveabiIitylNo proper 131 Working ofCriminal Law and ProcedureLacks 6141Reliability Not reliable 169 Does officiallofficer remain at HQrs or not afterofflcehoursl Does not 199 Defectsifany and whetherthosewere t brought to his noticethroughanyletter was C 0 placed undersuspension due to involvementin FIR NoA dated3107 I 0 Uls 3841342134IPC GRPS Hisar along with I othersand inquiry was initiated 4 Z vide meo Nol567 781A dated 2 912007 inquirywas initiatedvide Ce memo No599060511 dated 92007 due to c8 non ofthe complaint in time 0 General RemarkslUnable employee 111 police V Z ASI Devinder SinghNo60711GRPbe apprised ofthe above said adverse remarksand be instructedto remove these a defects Signature with dateofthe employee be obtainedon the second copy attached herewithand the same may be sent to this office as an Sdl Suresh Kumar 2014.04.09 12: 37 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 88 1 CWP N021197 of2008 1 DirectorGeneral ofPolice Railways 8Technical Services Haryana MogiNand Panchkula 37 While the above adverse entries it was also mentionedin the last of the communication that the officer be instructed to remove thesedefectsIt also appearsthat the adverseremarks in vanous columns are primarilybased upon FIR NoA dated 03O2007andthe Enquiryinitiated againstthe petitioner 1 Otherwiseno other materialhas been referredfor recording adverseentries 0 against the petitionerThe ofthe petitioner hasbeen rejected 4 I bytheInspector General of Police Railways Technical ServicesHaryana bya cripticand nonspeaking order The rejection order dated29052008 P9 readsas under Z I have gone through the 2 C11 commentsubmittedbythe Reporting Offlcer and I otherrelevant recordssubmittedbyASI Davinder c8 SinghNof0071GRP againstthe adverse remarks m7 recorded in his ACR for the duration from Z 2642006 to 313007 His has tle been considered and rejectedbeingdevoid of any merit The be informed accordingly ee Sdl ICKMishra9 Inspector General of Police Railways c Technical Services HayanaMogi Nand Panchkula 52 The petitionerhas placedon record order dated 06122008 Suresh Kumar 2014.04.09 12: 37 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 89 1 8 bythe learnedChiefJudicial MagistrateBhiwani in Criminal Case No1431108 flled pursuantto FIR NoA dated 0301 2007 in which the was initiallyinvolved The petitioner has not been arrayed as an accused Even the two personswho are arrayedas an accused have been It is also admittedfact that in the Enquiryas well thepetitioner hasbeen exonerated Thus the very basisfor adverseremarks against thepetitioner 1 Apartfrom the above the petitionerhas also relied upon 0 instructions dated 12121985 The relevant instructions relatingto reporting111 respectof doubtful integrityrequiresthat the I D Officer must clearlystate if the ofcer is of corruption I or 1S believed to be corruptand this opiniongenerallyshould be Z formulated by reasons which may be in possession of the Reporting Officer Cr I From the adverse reportsnoticed herein above it can be c8 inferred that FIR NoA dated 0301 2007 and the Proceeding are the reasons for doubtingthe integrityof the S7 Z petitionerIn so far other aspectsrelatingto his efficiency etc are concernedperhaps no interferencemay be warranted No materialhasbeen referred to exceptthe FIR and the Even the reasons for such an opinionare not recordedor disclosed in the reply In 444 Vlew of the outcome of the criminal and the Enquirynoticed above the adverse remarks regardingintegrityof the petitionerare not substantiatedbyany materialand thus not justied The AppellateAuthorityalso did not bother to record any reasons for rejecting the which has been dealt with in a most Suresh Kumar 2014.04.09 12: 37 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 90 CWPN021197 of2008 e9 casualmanner Even in the reply no have been disclosedfor the of the petitionerIt is also noticedthat while the adverseentries counseling to the remove his defectswas This clearlyestablishesthat at no stagethe was givencounseling or of his defects Thus the advise or after awarding amounts to puttingthe cart before the horse m Thusthe order dated2305007 Annexure Pel9 adverse C2 remarksis liable to be quashed lIl respectto entry 111 Column No 0 0 Doubtful It is not for this Court to interfere in the other I D columnswherein efOciency etc of the petitioner has been commented I the order dated29052008 P39passedby upon Z the General of Police Railways8 Technical Services Haryana 2 the ofthe petitioner is also set asidee r Nowcomingto the Civil Writ Petition NoA76 of 2009 The I c8 has been retiredvide the order dated 2412008 64nnexure P49bytakinginto consideration the adverseremrks 3 Z referredto above FIR NoA dated 0301 2007 and the two tl In one Enquirythe petitioner has been awarded of stoppageof one incrementwith temporaryeffect whereasin another Enquiryhe has beenawarded of stoppage ofone incrementwith permanenteffect The secondenquiry was conducted 4e on thecomplaint of one Narain Dutt son of GanpatRam As regards the secondenquiryis concemed the petitioner has placedon record an order passed bytheAppellateAuthorityie Inspector General ofPolice Railways c Technical Services Haryanadated 16072008 wherebythe penaltyof Suresh Kumar 2014.04.09 12: 37 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 91 4 CWP No 21197 of2008 10 of one annual gradeincrement with permanenteffect has been reduced to that ofCensure only Regarding the FIR NoA dated03012007 it has been noticed that the petitioner has not been challanedin criminalcase and exoneratedin the EnquiriesIt is a matter of concern that the Director General of Police Railwaysand Technical ServicesHaryanarelied upon a which does not exist the Authorityhavingconverted the penaltyof stoppageof one 1 incrementwith permanent effect to that of Censure Either the order of the 0 Authority was not brought to his notice or he hasoverlookedthe same while passingthe order of retirement In any casethe I D order of compulsory retirement merelyon the basis of of I of one annual gradeincrement with temporaryeffect awardedin Z Enquirybyno yardstick is justifiable one 2 In the case of Naikuntha Nath Das Vs Chief Distt Medical I Officer 19929 2 SCC 299 Honble theSupreme Court has laid down Ove 08 for examining thevalidityof the order of compulsory retirement Therelevantobservationsare as underl amw Z 16 A Bench of this Court 111 Ll Baikuntha Nath Das v Chief Distt Medical Officer laid down the following6ve principles SCC pp31516para3411 eae iI An order of compulsory retirementis not a It impliesno stigma nor any ofmisbehaviour 6ii9 The order has to be passedby the Govemmenton formingthe opinionthat it is in Suresh Kumar 2014.04.09 12: 37 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 92 CWP No 21197 of2008 11 44 the publicinterest to retire a government servant The order is passed on the satisfactionofthe Government 6iii9 Principles of naturaljusticehave no place111 thecontext of an order of compulsory retirement This does not mean that judicial scrutiny1S excluded While the High Court or this t Court would not examine the matter as an 0 court theymay interfere if theyare C satisfied that the order is passedal mala fide or I b9 that it is based on no evidence c 9that it is I arbitraryin the sense thatno reasonable person Z would form the requisiteopinionon the given 2 material in short if it is found to be a perverse I order c8 6iv The Government or the Review Committee as the case may be9shall have to consider the entire tmm Z record of service before takinga decision in the matterofcourse attaching more to record ofand duringthe lateryears The record to be so considered would naturallyinclude the eeee entnes 111 the confidential recordslcharacter rolls both favourableand adverse If a governmentservant 1S promoted to a higherpost the adverseremarks such remarkslose their sting more So if the promotion is based upon merit Suresh Kumar 2014.04.09 12: 37 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 93 C 12e v0 and not uponseniority v An order of compulsory retirement is not liable to be by a court merelyon the showing that while passingit uncommunicated adverse remarks were also taken into consideration That circumstanceby itself cannot be a basisfor interference 05 1C2 This decision has beenreiteratedin a numberof laterdecisions 0 including in the case of Stateof Guiaratand anotherVs SurvakantChunilal S 199911 Supreme Court Cases 529 D In the presentcase the opinionhas been formulatedon non I existentmaterial ie without evidence as lS from the impugned Z order of compulsory retirementwherein reference is made to FIR NoA 2 C2 dated03012007 and two EnquiriesThe outcome of these I two cases has alreadybeen noticed above Thus the very basis for C8 retirementdoes not exist and it is a case of no material on record In Chunilals case Honble the Supreme Court Imn Z held as under 9 This decision was takenunder Rule 161 ofthe BombayCivil Services Rules 1959 which provides as underl 16111 a9Exceptas otherwiseprovidedin the 414 otherclauses of this Rule the date of retirementof a governmentservant other than a Class IV servant is the date on which he attains the ageof 58 years Suresh Kumar 2014.04.09 12: 37 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 94 CWP No1197 of2008 13e Providede ii9 8 8 S 4 iiil He may be retainedin service after the dateof retirement only with the previous sanction of the Government on publicgrounds which must be recordedin writing 1 aal anythingcontained lll Lr clauseoall 0 6i1An appointing authorityshall if he is of the I opinionthat it is in the publicinterest so to do have the absoluterightto retire any government servant to whom clause 6aappliesbygivinghim Z notice of not less thanthreemonthsin writingor L threemonthsspay and allowances in lieu of such I noticel a5 lI Ifhe 1S111Class I or Class II service or post or e 3 Z in any unclassifiedgazetted post the agenit of for the purpose of direct recruitment to which is below 35 years on or after the dateon which he attainstheageof 50 yearsand 629 if he is in any other service or post the age e limit for the purposeofdirect recruitmentto which 1S below 40 years on or after the dateon which he attainsthe ageof55 years 6iil any governmentservant to whom clause 6a9 appliesmay by givingnotice of not less than Suresh Kumar 2014.04.09 12: 37 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 95 CWP N021197 of2008 4 three months in writing to the appointing authorityretire from service after he has attained the age of 50 years if he is in Class I or Class II service or postorln anyunclassified gazetted post the ageimit for the purpose of recruitment to which is below 35 yearsand in anothercase after he has attainedtheageof55 yearsl Provided that it shall be open to the appointing 0 authority to withhold permission to retire to a servant who is under or I againstwhom are pendingor and who seeks to retire Z under this subeclause l bl A Governmentservan 95 I I am of the considered view that the order of 025 retirement is a colourableexercise of jurisdictionand is liable to be quashed em Z In view of the above thesetwo wrlt petitions are accordingly Qm allowed with thefollowing directionsl 1 Entryof a doubil integritycommunicated vide letter dated 23052007 Pel in CWP No1197 of 20089alongwith order dated29052008 64nnexureP89rejecting the to the extent eG it relateto the entryofdoubtflil integrity are herebyquashed 2 The order retirementdated02012009 64nnexure I6in CWP NoA76 of2009 is also quashed 3 The petitioner is ordered to be reinstatedinto service forthwith The Suresh Kumar 2014.04.09 12: 37 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document 96 11 CWP N021197 of2008 5 91 shall not be entitled to any wages duringthe period 1 from the date of retirement till he is reinstated though he will be allowed the notional benets of increments any otherbenefitwhich mighthave been available to him had he been in service revlSlOrl ofpay et if any for the purposeof fixation of his salaryon reinstatement A copyofthis order be placed on the record ofconnectedOle e 1 272010 6PERMODKOHLI9 1 L BLS JUDGE 0C Whetherto be referredto theReporter9 YESI 0 I Z rI 2 I 08 rI 1 01 2 Z CL Suresh Kumar 2014.04.09 12: 37 Scanned True Copy of Original PHHC,Chandigarh Sahil Soni 2016.03.21 12:29 I attest to the accuracy and integrity of this document