-1- Civil Writ Petition No.2175 of 2008. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Date of Decision: April 28,2008. Vijay Parkash Bhardwaj ... Petitioner VERSUS Haryana Urban Development Authority, through its Chief Administrator, Panchkula and others ... Respondents CORAM : HON'BLE MR.JUSTICE HEMANT GUPTA. HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr.R.K. Malik, Senior Advocate, with Mr. Rakesh Kumar, Advocate, for the petitioner. Mr. Raman Gaur, Advocate, for the respondents. -.- MOHINDER PAL, J. The petitioner, who was working as Superintendent (Grade-I) in the office of the Legal Remembrancer, Haryana Urban Development Authority, (for short `H.U.D.A'), Panchkula, -2- Civil Writ Petition No.2175 of 2008. was compulsorily retired from service vide order dated January 30, 2008 (Annexure P-9), which is reproduced as below:- “ Shri V.P. Bhardwaj, AEO (Now Superintendent Grade-I) working in the office of Legal Remembrancer, HUDA, Panchkula had completed his 55 years of age on 5.5.2007. His case for extension in service beyond the age of 55 years was placed before the Personnel Committee in its meeting held on October 10,2007 and 12.12.2007. The Personnel Committee considered the case as per Government instructions issued from time to time. After considering the relevant personal service record of the officer it was observed that the acts of omission and commission alleged to have been committed by the officer stand proved. In one case concerning rescheduling of instalments of K.C Palace, Panchkula, the Personnel has already been issued Show Cause Notice for imposition of penalty of reduction in rank to which the reply has been submitted by the officer. The reply has been considered and the Committee has decided to confirm the penalty of reduction in rank for the reasons -3- Civil Writ Petition No.2175 of 2008. discussed against the agenda item. In the other case concerning plot No.404, Sector 20, Panchkula, the Committee has decided to impose the penalty of compulsory retirement. The manner in which both these cases have been handled by the officer reflect adversely on the integrity of the officer. The committee, therefore, decided that it will not be judicious to recommend grant of extension of service beyond the age of 55 years to the officer. Therefore, in pursuance and compliance of the decision of the Personnel Committee and as per provisions contained in Rule 3.26 of Civil Services Rules, Volume I, Part-I, Shri V.P. Bhardwaj, Superintendent Grade-I office of the L.R, HUDA, Panchkula is compulsory retired from HUDA services today i.e 30.1.2008 (AN). A cheque bearing No.752998 dated 30.1.2008 for an amount of Rs.54,774/- (Rupees fifty four thousand seven hundred and seventy four only) of ICICI Bank towards three months' pay and allowances is enclosed herewith.” It is the case of the petitioner that he was never -4- Civil Writ Petition No.2175 of 2008. conveyed any adverse confidential report in his whole service career except the report for the period from June 14, 1989 to October 20, 1989. In the said report, the integrity of the petitioner was shown doubtful. The petitioner filed civil suit for expunging the said adverse remarks and the Civil Court vide judgment dated May 20, 2000, expunged the said adverse remarks. The department went in appeal against the judgment dated May 20, 2000, which was dismissed. Thus, the judgment of the Civil Court attained finality. It is further case of the petitioner that he was also issued another charge sheet dated November 24, 2003 on the following allegations:- “ 1. That he suo-moto dealt the file of site No.405, Sector 20, Panchkula instead of getting the case dealt through Branch. 2. That due to his suo-moto and unauthorized action HUDA has suffered financial loss and lost the case in DCF, Panchkula. 3. Misuse of official powers with ulterior motives and dereliction of duties.” The petitioner submitted reply to the charge sheet. A regular inquiry was ordered to be conducted against the -5- Civil Writ Petition No.2175 of 2008. petitioner and the Superintending Engineer, Horticulture, H.U.D.A, Panchkula, was appointed Inquiry Officer. He submitted report (Annexure P-8) holding that none of the charges was proved against the petitioner. However, on the basis of the said charges, the punishing authority passed the order dated January 30, 2008 (Annexure P-9), reproduced above, without giving his dissenting note against the findings recorded by the Inquiry Officer. Hence this writ petition. In the written statement filed by the respondents, it is admitted that adverse remarks about the integrity of the petitioner were expunged by the Civil Court and the order of the Civil Court was upheld by the Appellate Court. It has been pleaded that on receipt of the inquiry report (Annexure P-8) regarding the charge sheet dated November 24, 2003, issued to the petitioner, the matter was placed before the Personnel Committee of H.U.D.A for appropriate decision. The Personnel Committee took into consideration all the facts and material brought before it and decided to issue show cause notice to the petitioner for imposing penalty of reduction in rank. The petitioner made representation against the proposed penalty, which was considered by the Personnel Committee in its meetings held on December 10, 2007 and December 12, 2007 and decided to confirm the penalty of reduction in rank. Accordingly, order to this effect was issued vide Annexure P-5 dated January 29, 2008. It has been further pleaded that though the Inquiry Officer did not find the charges levelled -6- Civil Writ Petition No.2175 of 2008. against the petitioner as proved, but the Personnel Committee decided that it will not be judicious to recommend grant of extension of service beyond the age of 55 years to the petitioner and decided to retire him compulsorily from service of H.U.D.A. We have heard Mr.R.K. Malik, Senior Advocate, assisted by Mr. Rakesh Kumar, Advocate, appearing for the petitioner and Mr. Raman Gaur, Advocate, appearing for the respondents and have gone through the records of the case. Admittedly, the order of compulsorily retirement has been passed on the same allegations which were not found proved by the Inquiry Officer as per his report (Annexure P- 8). So far as adverse remarks for the period from June 14, 1989 to October 20, 1989 against the petitioner are concerned, the same were expunged by the Civil Court and the appeal filed by the department was also dismissed by the Appellate Court. The petitioner was never conveyed any other adverse remarks. As per the instruments/guide-lines dated November 19, 1991 (Annexure P-1) issued by the Government of Haryana and adopted by H.U.D.A regarding premature/compulsory retirement of employees on attaining the age of 50-55 years, it has been prescribed that service record of past ten years' is to be looked into for this purpose and further that there is no entry regarding doubtful integrity during this period. A perusal of the impugned order dated January 30, 2008 (Annexure P-9) shows that it has been passed without heeding to the instructions/guide-lines (Annexure P-1). As stated above, the -7- Civil Writ Petition No.2175 of 2008. respondent-Department passed the impugned order merely on the basis of allegations which had not been proved before the Inquiry Officer. There are no adverse entries in the service record of the petitioner to support the order of compulsorily retirement. In the written statement filed by the respondents, nothing has been averred that the petitioner's service record revealed any adverse entries. The petitioner had successfully crossed the efficiency bar at the age of 50 years. The jurisdiction or authority of the punishing authority while considering the case of an employee for compulsory retirement is not only of wide magnitude but is also quite judicious. This discretion is not to be used as a substitute for disciplinary action. When the department intends to inflict punishment upon an employee, it is expected to follow the prescribed procedure. It was held by this Court in Dharam Singh v. State of Haryana and another, 1997 (3) All Instant Judgments 309 that if the department is desirous to compulsorily retire the person from service because of his less utility to the department in a larger public interest, then it must exercise its discretion in consonance with the settled principles of law and the instructions issued by the Government itself. The facts and circumstances enumerated above clearly show that the respondents have passed the impugned order more with an intention to punish the petitioner for his lapses mentioned in the charge sheet, which were not proved before the Inquiry Officer, rather than as an administrative -8- Civil Writ Petition No.2175 of 2008. measure taken in public interest or in administrative exigency. Consequently, we allow the writ petition and quash the order of compulsory retirement dated January 30, 2008 (Annexure P-9) passed against the petitioner. There shall be no order as to costs. ( HEMANT GUPTA ) ( MOHINDER PAL ) JUDGE JUDGE April 28, 2008. ak