C.W.P. No.8651 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. C.W.P. No. 8651 of 2010 DATE OF DECISION : 21.2.2011 ASI Gurbachan Singh PETITIONER VERSUS State of Haryana and others RESPONDENTS CORAM : HON'BLE MR.JUSTICE MAHESH GROVER Present:- Shri Parveen Kumar Rohilla, Advocate for the petitioner. Shri Harish Rathee, Senior D.A.G. Haryana. MAHESH GROVER, J. The petitioner impugns the action of the respondents by which he has been compulsorily retired and not permitted to continue beyond the age of 55 years. His grievance in nutshell is that he has been working diligently with the respondents after having been recruited as a Constable on 1.9.1974. He was promoted as Head Constable and E.A.S.I. and was scheduled to retire in the year 2013. But he has been retired prior to the said date by virtue of Annexure P-7 in complete violation of the principles of law which contemplate that a person should C.W.P. No.8651 of 2010 -2- have earned 70% or above good reports and if his integrity has not been doubted for the last 10 years, he should continue to perform duties beyond the age of 55 years. The respondents have denied the averments made in the petition and have stated that the impugned order is justified as the entire service record of the petitioner is required to be considered, which was done in the instant case and finding numerous cases of misconduct which the petitioner had committed, he was not found fit to be retained beyond the age of 55 years. Learned counsel for the petitioner while making grievance of the said order, placed reliance upon the observations made by the Hon'ble Supreme Court in Baikuntha Nath Dass v. Chief Distt. Medical Officer 1992(2) S.C.T. 92 and two judgments rendered by this Court in C.W.P. No.4680 of 2010 E/SI Anand Kishore v. State of Haryana and others and C.W.P. No.13958 of 2010 ASI Balwan Singh v. State of Haryana and others. The Hon'ble Supreme Court in Baikuntha Nath Dass v. Chief Distt. Medical Officer 1992(2) S.C.T. 92 laid down the following principles :- (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsory. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is C.W.P. No.8651 of 2010 -3- excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material ; in short, if it is found to be a perverse order. (iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it uncommunicated, adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for C.W.P. No.8651 of 2010 -4- interference. This decision has been reiterated in a number of later decisions including in the case of State of Gujarat and another v. Suryakant Chunilal Shah, 1999(1) S.C.T. 208.” The judgments of this Court relied upon by the learned counsel for the petitioner are also primarily based on the aforesaid observations. If one is to consider the conduct of the petitioner as given out in the written statement filed by the respondents to evaluate the justification for passing of the impugned order, then one notices that the conduct of the petitioner in his service tenure has not been very inspiring. The following are the cases of misconduct established against him :- “(1) He was awarded punishment of stoppage of two annual increments with temporary effect in the year 1998 vide SP/Rlys order No.34799-802/AC-1 dated 13.10.1998 in a departmental enquiry conducted against him on the allegation that when he was posted as Moharrar Malkhana GRP, Ambala Cantt, he changed VIP suitcase containing seven bags of opium (2kgs. in each bag) - case property of case FIR No.178/1991 of NDPS Act, GRPS Ambala Cantt. On checking, 5 kg 800 gms. opium found less. (2) He has been awarded punishment of stoppage of three annual increments with permanent effect vide DGP Haryana's order No.2786/E(II)-2 dated 2.3.2009 on the allegations that in the year 2004, when he was posted as Incharge Police Post GRP, Jagadhari dead body of one Salook Dass was found on C.W.P. No.8651 of 2010 -5- railway track between railway stations Jagadhri and workshop Jagadhri on 6.9.2004. ASI Gurbachan Singh No.232/GRP had conducted the inquest. During the proceedings u/s 174 Cr.P.C., Smt.Santosh widow of deceased Salook Dass had suspected that her husband had been murdered by Surinder George, but ASI Gurbachan Singh No.232/GRP did not take action according to her statement. He also misbehaved with Smt.Santosh - complainant and concealed the crime. Later on, case FIR No.38 dated 19.2.2005 u/s 302/201/34 IPC GRPS Ambala Cantt. registered regarding Murder of Salook Dass. (3) He was placed under suspension and a regular departmental enquiry was conducted against him for his involvement in case FIR No.85 dated 2.6.2005 u/s 363/366/506/342/376/34 IPC PS Barara. On 16.1.2005, when he was posted in Police Post/GRP Brara, he allegedly raped Sapna Rani d/o. Sh.Vishnu Dutt r/o Gurdev Mohalla, Barara in Police Post/GRP, Brara. In this case the Court has acquitted the accused as the prosecutrix did not support the prosecution version. The departmental enquiry has also been filed. (4) For murder of one Joginder Singh and causing injuries to Smt.Charan Kaur, case FIR No.97/1995 u/s 148/149/301/302 IPC PS, Naraingarh was registered against him. He was placed under suspension w.e.f. 6.8.1995. He was acquitted by Court of ADJ/Ambala vide order dated 29.7.1996 due to lack of evidence against him. (5) He was awarded punishment of censure in the year 1994 for C.W.P. No.8651 of 2010 -6- knowingly delaying taking over charge of Moharrar Malkhana/GRP. (6) He was also awarded censure in the year 2003 for having been found absent from PP/GRP, Barara during surprise checking of SP/Railways. Out of the aforesaid punishments awarded to the petitioner, one of the punishments awarded to him referred to under item (1) was converted into the punishment of stoppage of three annual increments without permanent effect. The employer has an absolute right to consider the cases of the employees who are to be retained in service beyond the age of 55 years. Obviously the purpose is to weed out dead-wood and all that is required to be seen in judicial review of the said order is that such an order should not be palpably perverse and that it should reflect that dispensation of services of an employee is indeed in public interest and the order should have been passed on subjective satisfaction and and it should not be based on no evidence and it should not be arbitrary to suggest perversity. If the material which has been taken against the petitioner is to be seen, then there are serious defects in his conduct. He was alleged to have removed the case property under the N.D.P.S.Act and involved in serious lapses which find reflection in the orders of punishments as extracted above. I am thus, of the opinion that the competent authority's decision not to retain the petitioner in active service cannot be termed to be arbitrary or perverse, so as to warrant interference in the judicial review thereof. No ground to interfere. Dismissed. (MAHESH GROVER) February 21, 2011 JUDGE C.W.P. No.8651 of 2010 -7- GD WHETHER TO BE REFERRED TO REPORTER? YES/NO