Compulsory Retirement cannot be considered as a Penal Measure: Punjab and Haryana High Court

 on 24 09 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.5920 Date of decision: 17.09.2020(Heard through Video Conferencing)Hawa Singh Bhambhu..Appellant VersusState of Haryana and another..RespondentsCORAM:HON BLE MRS. JUSTICE DAYA CHAUDHARYHON BLE MRS. JUSTICE MEENAKSHI I. MEHTAPresent:Mr. V.K. Jindal Sr. Advocate with Mr. Akshay Jindal Advocatefor the appellant.Mr. Deepak Balyan Addl. AG Haryanafor the respondents. Daya Chaudhary J. Appellant Hawa Singh Bhambhu has filed the present Letters Patent Appealto challenge order dated 28.07.2020 passed by learned Single Judge of this Court whereby CWP No.77620 filed by him has been dismissed. Briefly the facts of the case as made out by the appellant are that initially he was appointed on the post of Patwari in the year 1986 and was promoted as Kanungo on 28.11.2000. Thereafter he was promoted as Naib Tehsildar w.e.f.28.10.2016 vide order dated 09.01.2017. He was prematurely retired vide order dated 01.04.2020 on attaining the age of 55 years w.e.f.22.07.2020 after giving three months prior notice. As per case of the appellant his service record was excellent and he was given on 24 09 LPA No.5920 2 .......promotions on the basis of his work and conduct. He was issued a charge sheet on 21.02.2018 on account of filing appeal with delay before this Court but subsequently he was exonerated vide order dated 18.04.2019. Thereafter he was issued another charge sheet on 13.02.2018 on account of dereliction of duty for wrong registration of mutation in the year 2009 while he was working as Kanungo. Said order dated 01.04.2020 of premature retirement was challenged in CWP No.77620 and the same was dismissed by learned Single Judge on 28.07.2020 which has been challenged in the present appeal.Learned senior counsel for the appellant submits that the service record of the appellant was good outstanding as not only he was graded as good very good and outstanding but he was also given promotions to the higher posts. The incident of the year 2009 was made basis for retiring the appellant prematurely whereas it was not a case of moral turpitude reflecting the conduct of the appellant. Learned counsel also submits that an inadvertent mistake occurred while making entry in the mutation because of similar names. Learned counsel also submits that the impugned order of premature retirement was passed in violation of Article 144 of the Haryana Civil ServicesRules 2016which provides that an officer employee can only be retired prematurely on account of inefficiency after considering the entire service record. It is also the argument of learned senior counsel that the order of premature retirement is to be passed by considering the on 24 09 LPA No.5920 3 .......public interest in case said employee or officer has lost efficacy or is considered as dead wood and for that purpose the entire service record is to be seen. There was no allegation of corruption dishonesty or infamous conduct of the appellant and single punishment cannot be made the basis for invoking Rule 144 of the Rules 2016. At the end learned senior counsel submits that the provisions of the Rules 2016 and relevant facts have not been taken into consideration and the judgment passed by learned Single Judge is liable to be set aside in this appeal. Learned State counsel has opposed the submissions made by learned senior counsel for the appellant and submits that the appellant faced disciplinary proceedings under Rule 7 of the Haryana Civil ServicesRules 2016 in two different cases. He was issued a charge sheet on 21.02.2018 on account of negligence on his part for delay in filing appeal before this Court. Thereafter the appellant was issued another charge sheet on 13.02.2018 and was charged with dereliction of duty on account of wrong registration of mutation in the year 2009 as appellant had shown Ramphal S o Risala resident of Village Garhi Sisana as deceased in mutation No.3041 of Village Garhi Sisana on 23.06.2009 whereas said person was alive and death certificate of another Ramphal S o Chandan resident of Ward No.7 Kharkhoda was mentioned in the mutation. Learned State counsel further submits that the appointing competent authority was competent to retire any Government employee officer in case he she is inefficient or he has lost his utility while in service. Learned State counsel also submits that proper procedure was followed on 24 09 LPA No.5920 4 .......before passing order of premature retirement as the appellant was given three months advance notice. Learned State counsel also submits that the appellant was also awarded major punishment of stoppage of two annual increments with cumulative effect and after that a tentative decision was taken by the department to retire him prematurely at the age of 55 years. The matter was also sent to the Secretary Haryana Public Service Commission and the proposal sent by the Department was considered and approved. Learned State counsel as directed has also submitted photocopy of annual confidential reports for the period from 1999 2000 to 2017 2018 wherein six outstanding one very good and three good reports are recorded. It also shows that in the last ten years 70% ACRs are good very good or outstanding. Heard arguments of learned counsel for the parties and we have also perused the relevant record with the assistance of learned State counsel as well as the judgment passed by learned Single Judge. The finding record by learned Single Judge while dismissing CWP No.77620 is as under: “The impugned orders placed on the records whereby Officers Committee headed by the Chief Secretary Haryana considered on 10.02.2020 the proposal of the Department and concurred with the decision recommending to retire the petitioner prematurely in public interest as he had already attained 55 years of ager on 04.06.2018. It is based on the records where on 24 09 LPA No.5920 5 .......reputation for corruption dishonesty or infamous conduct was found to be clearly established by the authority and taking the same to affect moral turpitude of the officer had decided to retire him prematurely and therefore the arguments that have been sought to be raised that it was a stigmatic order does not augur well for the petitioner. The claim that is sought to be raised that earlier for these allegations the petitioner has been administratively dealt with and cannot be again considered for forming an opinion or arriving at a decision to prematurely retire the petitioner does not sustain in the eyes of law and does not impress the Court much. The Commissioner has minutely perused the records and has observed that the authorities keeping in view the overall conduct of the petitioner in his service throughout which it considered that the same was not in public interest has passed orders prematurely retiring him and therefore cannot be termed to be stigmatic or that the same was for vexing him twice for the same very allegations. This Court does not concur with the submissions of learned counsel for the petitioner that the orders were not sustainable. More so under Clause XVIII of the Policy of Premature Retirement a Government employee who has been served with a on 24 09 LPA No.5920 6 .......notice order of premature retirement under these provisions may submit a representation within three weeks from the date of service of such notice order. However the petitioner nowhere speaks or claims having done so and his utter failure to do so with the efflux of time also renders the impugned findings to have attained finality. In the light of what has been detailed and discussed above there is no merit in the instant petition and the same stand dismissed.” Rule 144 of the Rules 2016 provides that an officer employee can only be retired prematurely on account of inefficiency after considering the entire service record and the same is reproduced as under: “144. Premature retirement after attaining the prescribed age or qualifying service. —The appointing authority shall in public interest have the absolute right to retire prematurely a Government employee of any Group other than of Group D on account of inefficiency after attaining the prescribed age irrespective of his length of service or after completion of twenty years’ qualifying service irrespective of his age by giving him a notice of not less than three months in writing or pay and allowances in lieu of notice period. The minimum age prescribed for the purpose except in case of twenty years’ qualifying service is─ on 24 09 LPA No.5920 7 .......(i) 50 years for the Government employees who are working on a post of Group ‘A’ or ‘B’ and joined service on any post before attaining the age of thirty five years 55 years for the Government employees who are working on a post of Group ‘A’ or ‘B’ and joined service on any post after attaining the age of thirty five years and55 years for Government employees working on Group C posts:Provided that in the case of Judicial Officer the case for retention in service beyond the age of fifty eight years shall be considered by the competent authority before he attains such age irrespective of his date of entry into Government service.Note 1.—but not to such a degree as to warrant his retirement on a compassionate ground. It is not the intension to use the provisions of this rule as a financial weapon that is to on 24 09 LPA No.5920 8 .......say the provision shall be used only in the case of Government employees who are considered unfit for retention on personal as opposed to financial grounds and in cases where reputation for corruption dishonesty or infamous conduct is clearly established even though no specific instance is likely to be proved under the Haryana Civil ServicesRules 2016 or the Public ServantsAct 18501992(2) SCC 299 has also been relied upon 1 on 24 09 LPA No.5920 10 .......wherein grounds for premature retirement have been given. The principles of premature retirement mentioned in the said judgment are reproduced as under: “(i) An order of premature 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 prematurely. 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 premature retirement. This does not mean that judicial scrutiny is 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 passedmala fide orthat it is based on no evidence orthat 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.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 1 on 24 09 LPA No.5920 11 .......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 meritand not upon seniority.(v) An order of premature 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 interference. Interference is permissible only on the grounds mentioned inabove. It will thus be seen that the judicial pronouncements are clearly to the effect that premature retirement is not a punishment does not involve a stain or stigma and that it is in the public interest.”Certain more parameters have also been mentioned in the policy of premature retirement which are as under: “(a) The competent authority must apply its mind independently to the record of the employee and form an opinion about the suitability and the desirability of continuing an employee officer in the service after completing prescribed age or qualifying service. 1 on 24 09 LPA No.5920 12 .......(b) The competent authority is required to make an objective assessment evaluation of the work conduct and performance of the employee as reflected in his service record in order to determine whether he should be retired before the age of superannuation.(c) Service record of last 10 years should be taken into account and out of this 50% ACR in case of retention beyond 50 years and 70% ACRs in case of retention beyond 55 years or on completion of 25 years qualifying service should be Good or above.A Government employee against whom disciplinary proceedings were pending but now decision has been taken and now no departmental Vigilance enquiry is pending against him may be considered for extension in service.A Government employee whose integrity has been doubted during last ten years of service will be retired prematurely however the doubtful integrity during the period of service before last 10 years will be ignored.(e) No employee should ordinarily be retired on the grounds of ineffectiveness if his service during the preceding 5 years or where he has been promoted to a higher post during that 5 years period his service in the promotional post has been found satisfactory. 1 on 24 09 LPA No.5920 13 .......(f) Government employee who is found to be ineffective may be considered for premature retirement. The basic consideration in identifying such employee should be the fitness competence of the employee to continue in the post which he is holding.(g) No employee should ordinarily be retired prematurely if he would be retiring on superannuation within a period of one year from the date of consideration of his case. This provision is relevant only when an employee is proposed to be retired on the ground of ineffectiveness but not on the ground of doubtful integrity. It is clarified that in a case where there is a sudden and steep fall in the competence efficiency or effectiveness of an officer it would be open for the competent authority to review his case for premature retirement during the last year of superannuation. The damage to public interest could be marginal if an old employee in the last year of his service is found ineffective but the damage may be incalculable if he is found corrupt and demands or obtains illegal gratification during the said period for the tasks he is duty bound to perform.(h) When an officer official is considered to have good reputation for integrity and honesty the HOD or 1 on 24 09 LPA No.5920 14 .......Administrative Secretary concerned should furnish the following certificate of integrity : Having scrutinized in character roll and personal file of Shri Smt. Kumari_______________ and having taken into account all other relevant available information I certify that he she has a food reputation for integrity and honesty.(i) In every case where it is proposed to retire a Government employee under Rule 144 of HCSRules 2016 the HOD Administrative Secretary concerned should record in the case that he is of the opinion that it is necessary to retire the Government employee in pursuance of the aforesaid rule(s) in the public interest. In case of Union of India versus Col. J.N. Sinha the Supreme Court had observed that the appropriate authority should bona fide form an opinion that it is in public interest to retire the officer in exercise of the powers conferred by that provision and this decision should not be an arbitrary decision or should not be based on collateral grounds.(j) The rules relating to premature retirement should not be used for reduction of surplus staff or as a measure of effecting general economy without following the rules and instructions relating to retrenchment.”For passing order of premature retirement the entire service record is required to be taken into consideration as mentioned in policy against Column No.IV which reads as under: “IV. Perusal of entire Service Record: The entire service record of an officer should be considered at the time of review. The term service record is all embracive and review should not hence be confined to the consideration of only the Annual Confidential Reports. In some of the Departments Officers take action for concluding contracts settling claims assessing taxes etc. Doubts may have arisen relating to the bona fide nature of action taken by the officer but on account of inadequate proof it may not have been possible to initiate action for a regular departmental inquiry leading finally to a punishment of the nature that may find entry in the ACRs of the officer official. The personal file of the officer official may have details of the nature of doubt that arose regarding the integrity of the officer and the result of the preliminary investigation that was carried out. Matters 1 on 24 09 LPA No.5920 16 .......found on the personal file of the officer can and should also therefore be placed before the Administrative Department officers Committee and not only the ACRs of the officer official concerned. It is likely that each allegation that comes to notice against the integrity of the officer may have been handled on a separate file and that details thereof may not be available on the personal file of the officer which is confined only to establishment matters like increments promotions grant of benefit of ACP etc. In such a situation well ahead of the meeting of the Officers Committee the Administrative Department will have to compile together all the data available in the separate files and prepare a comprehensive brief for the consideration of the Officers Committee. There are a number of judicial pronouncements in support of the above provision that a total assessment of the performance of the Government employee can be made. There have also been observations that have approved any measure by which the assessment by superiors with an opportunity to watch the work and conduct of an officer is taken into account while deciding premature retirement. In a case titled Union of India v s M.E. Reddy and anotherthe 1 on 24 09 LPA No.5920 17 .......Supreme Court observed “It will indeed be difficult if not impossible to prove by positive evidence that a particular officer is dishonest but those who have had the opportunity to watch the performance of the said officer in close quarters are in a position to know the nature and character not only on his performance but also of the reputation that he enjoys.”In another case titled R.L. Butail v s Union of India and another2 SCR 55 the observation was “It may well be that in spite of work of the appellant being satisfactory as he claimed it was there may have been other relevant factors such as the history of the appellant s entire service and confidential reports throughout the period of the service upon which the appropriate authority may still decide to order appellant s retirement under FR 56(j).”While passing order of premature retirement the competent authority is to ensure the application of mind to the record of the employee for making an objective analysis with a view to see whether such employee is fit to be continued in service or not. It is also to be seen whether his her 1 on 24 09 LPA No.5920 18 .......extension in service on attaining the age of 55 years or on completion of 25 years of qualifying service is in public interest. The border line cases or the employees who had shown consistent improvement in their work and performance may be considered for an extension of one year provided they have not earned adverse remarks reflecting their integrity. Judgment of case titled as D. Ramaswamy vs. State of Tamil Nadu AIR 1982 SC 793 is also relevant in the present context and in the circumstances which are necessary to be considered while seeing the entire service record of the concerned employee. The relevant portion of said judgment is reproduced as under: “After his promotion as Deputy Commissioner there was no entry in the service book to his discredit or hinting even remotely that he had outlived his utility to the Government. If there was some entry not wholly favourable to the appellant after his promotion one might hark back to similar or like entries in the past read them in conjunction and conclude that the time had arrived for the Government employee to be retired prematurely from Government service............................................................... The learned Counsel for the State of Tamil Nadu argued that the Government was entitled to take into consideration the entire history of the appellant including that part of it prior to his promotion. We do not say that the previous history of a 1 on 24 09 LPA No.5920 19 .......Government employee should be completely ignored once he is promoted. Sometimes past events may help to assess present conduct. But when there is nothing in the present conduct casting any doubt on the wisdom of the promotion we see no justification for needless digging into the past.......................................”Similarly relevant portion of judgment rendered in M.E. Reddy s caseis reproduced as under: “Mr. Krishnamurthy Iyer appearing for Reddy submitted that the order impugned is passed on materials which are non existent in as much as there are no adverse remarks against Reddy who had a spotless career throughout and if such remarks would have been made in his confidential report they should have been communicated to him under the rules. This argument in our opinion appears to be based on a serious misconception. In the first place under the various rules on the subject it is not every adverse entry or remark that has to be communicated to the officer concerned. The Superior Officer may make certain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision or contact. Some of these remarks may be purely innocuous or may be connected with general reputation of honestly or 2 on 24 09 LPA No.5920 20 .......integrity that a particular officer enjoys.”It has been a settled principle in various judgments of this Court as well as judgments of Hon ble the Apex Court that compulsory premature retirement is not a punishment as it does not leave any stain or stigma. Rule 3.26andof CSR Vol. I Part I provides that every government employee shall retire from service on the last date of the month on attaining the age of 58 years. An Exception to this Rule has also been provided in sub clause 9(d) under which the appointing Authority has an absolute right in case it is in the public interest other than class IV employee and that too by giving him a notice in writing of not less than three months or three months pay in lieu thereof. The Punishing Authority has a right to review the work and conduct of the employee and total service record of the concerned employee is to be taken into consideration before taking a decision in the matter of course attaching more importance to record and performance during the service period. The service record includes entries in the confidential records character rolls both favourable and adverse. The order as such is to be passed on the basis of subjective satisfaction by the Competent Authority on forming an opinion that it is not in public interest to keep the government employee in service or to retire him compulsorily. It is also not disputed that principles of natural justice have to be adopted and the order is not to be passed in an arbitrary manner without forming an opinion by considering the total service record. No doubt judicial scrutiny is also permissible while granting premature compulsory retirement and in case the order is arbitrary or mala fide or is 2 on 24 09 LPA No.5920 21 .......based on no evidence then reasons are necessary to be recorded. Undisputedly the State Government has an absolute right to retire the petitioner in public interest but such an opinion is to be based on subjective satisfaction and performance of the petitioner or concerned employee during his entire service record and especially the record of last 10 years before the date of passing of order of compulsory retirement. It is not disputed that sometimes un communicated service record can also be taken into consideration. In judgment of Baikuntha Nath Das s casethe Hon ble Apex Court has also observed that interference is permissible but only in case the order passed is mala fide or is based on no evidence or found to be perverse. Same view was taken by Hon ble the Apex Court in cases Union of India vs. Ajoy Kumar Patnaik 1995SCT 692as well as in Chandra Saikia Vs. State of Assam4 SCC 50. Similarly in cases of Jarnail Singh vs. State of Haryana 2007SCT 492 Baikuntha Nath Das s caseand Chandra Saikia s caseit was held that communication of adverse remarks is not necessary while considering the case for retention of an employee in service beyond 50 55 years of age. In the present case also the case of the petitioner was reviewed and he was not found to be useful in larger public interest and the impugned order of compulsory retirement was passed. As per judgment in Baikuntha Nath Das s casethe order of compulsory retirement is not a punishment and it implies no stigma. Only an opinion is to be formed which is in the public interest to retire a Government servant compulsorily and the order is passed on the subjective satisfaction of the 2 on 24 09 LPA No.5920 22 .......Competent Authority. The review Committee is to consider the entire record of the concerned employee before taking a decision in the matter. “What is public Interest ” was explained by the Hon ble Apex Court in case of Union of India vs. Col. J.N. Sinha and another 1970SCC 458 wherein it was held that the objective of premature retirement of a government servant was to weed out the inefficient corrupt dishonest employees from government service. In State of Gujarat vs. Surya Kant Chuni lal Shah 1999SCT 208 the observations made by Hon ble the Apex Court in para Nos. 11 to 22 are as under: “11. What is public interest was explained in the classic decision of this Court in Union of India vs. Col. J.N. Sinha and another 1970SCC 458. It was pointed out that the object of premature retirement of a Govt. servant was to weed out the inefficient corrupt dishonest employees from the Govt. service. The public interest in relation to public administration means that only honest and efficient persons are to be retained in service while the services of the dishonest or the corrupt or who are almost dead wood are to be dispensed with. The Court observed: “Compulsory retirement involves no civil consequences. The aforementioned rule 56(j) is not intended for taking any penal action against the government servants. That rule merely embodies one of the facets of the pleasure 2 on 24 09 LPA No.5920 23 .......doctrine embodied in Article 310 of the Constitution. Various considerations may weigh with the appropriate authority while exercising the power conferred under the rule. In some cases the government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding. It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer. It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there. There is no denying the fact that in all organizations and more so in government organizations there is good deal of dead wood. It is in public interest to chop off the same. Fundamental Rule 56(j) holds the balance between the rights of the individual government servant and the interests of the public. While a minimum service is guaranteed to the government servant the government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest........ “It is true that a compulsory retirement is bound to have some adverse effect on the government servant who is compulsorily retired but then as the rule provides that 2 on 24 09 LPA No.5920 24 .......such retirements can be made only after the officer attains the prescribed age. Further a compulsorily retired government servant does not lose any of the benefits earned by him till the date of his retirement. Three months notice is provided so as to enable him to find out other suitable employment.”In our opinion the high Court erred in thinking that the compulsory retirement involves civil consequences.12. This was also the view of this Court in H.C. Gargi v. State of Haryana 1986SCC 158. 13. In Gian Singh Mann v. High Court of Punjab and Haryana and another 1980SCC 266 it was pointed out that “the expression public interest in the context of premature retirement has a well settled meaning. It refers to cases where the interests of public administration require the retirement of a Government servant who with the passage of years has prematurely ceased to possess the standard of efficiency competency and utility called for by the Government service to which he belongs.14. In Kailash Chandra Aggarwal v. State of M.P. and another 1987SCC 513 it was pointed out that the order of compulsory retirement if taken in public interest could not be treated as a major punishment and 2 on 24 09 LPA No.5920 25 .......that Article 311(2) of the Constitution could not be invoked as the employee concerned was no longer fit in public interest to continue in service and therefore he was compulsorily retired.15. In Union of India vs. M.E. Reddy and another 1980SCC 15 it was pointed out that the object of compulsory retirement was to weed out the dead wood in order to maintain a high standard of efficiency and initiative in service. Rule 16(3) of the All IndiaRules 1958 empowered the Govt. to compulsorily retire officers of doubtful integrity. The safety valve of public interest was the most powerful and the strongest safeguard against any abuse or colourable exercise of power under that rule. 16. A three Judge Bench of this Court in Baikuntha Nath Das and another v. Chief District Medical Officer Baripada and another 1992SCT 92SCC 299 laid down the following five 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 compulsorily. The order is 2 on 24 09 LPA No.5920 26 .......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 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 passedmala fide orthat it is based on no evidence orthat 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 governmentshall 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 meritand not upon seniority.An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while 2 on 24 09 LPA No.5920 27 .......passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.” 17. This decision was reiterated by another three Judge Bench of this Court in Posts & Telegraphs Board and others v. C.S.N. Murthy 1992SCC 317 : 1992(2) SCT 325in which it was laid down as under : “An order of compulsory retirement is not an order of punishment. F.R. 56(j) authorises the Government to review the working of its employees at the end of their period of service referred to therein and to require the servant to retire from service if in its opinion public interest calls for such an order. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the departmental authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the Government to decide upon. The courts will not interfere with the exercise of this power if arrived at bnonafide and on the basis of material available on the record.”SCC 162: 1995SCT 567Apex Court observed as under : 2 on 24 09 LPA No.5920 28 ......."While exercising the power under Rule 56(j) of the Fundamental Rules the appropriate authority has to weigh several circumstances in arriving at the conclusion that the employee requires to be compulsorily retired in public interest. The Government is given power to energies its machinery by weeding out dead wood inefficient corrupt and people of doubtful integrity by compulsorily retiring them for service. When the appropriate authority forms bona fide opinion that compulsory retirement of the government employee is in the public interest court would not interfere with the order."19. The Court however added that the opinion must be based on the material on record otherwise it would amount to arbitrary or colorable exercise of power. It was also held that the decision to compulsorily retire an employee can therefore be challenged on the ground that requisite opinion was based on no evidence or had not been formed or the decision was based on collateral grounds or that it was an arbitrary decision.20. In S.R. Venkarataman vs. Union of India.2 SCC 491 it was held the order of compulsory retirement as a gross abuse of power as there was nothing on the record to justify and support the order. 2 on 24 09 LPA No.5920 29 .......21. In Baldeo Raj Chaddha vs. Union of India 4 SCC 321 it was held that although the purpose of Rule 56 was to weed out worthless employees without punitive extremes if under the guise of "public interest" an order of premature retirement is made for any other purpose it would be the surest menace to public interest and the order must fail for unreasonableness arbitrariness and "disguised dismissal".22. Baikuntha Nath s casewas considered by this Court in M.S. Bindra vs. Union of India & Ors. JT 1998SC 34 : 1998SCT 325and it was laid down as under: "Judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or mala fide or if it is based on no evidence. The observation that principles of natural justice have no place in the conext of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion the same can be obviated on the assumption that other materials alone need be looked into." It was further observed as under : "While viewing this case from the next angle for judicial scrutiny i.e. want of evidence or material to reach such 3 on 24 09 LPA No.5920 30 .......a conclusion we may add that want of any material is almost equivalent to the next situation that form the available materials no reasonable man would reach such a conclusion. In order therefore to find out whether any Govt. servant has outlived his utility and is to be compulsorily retired in public interest for maintaining an efficient administration an objective view of overall performance of that Govt. servant has to be taken before deciding after he has attained the age of 50 years either to retain him further in service or to dispense with his services in public interest by giving him three months notice or pay in lieu thereof. In judgment of Hon ble the Apex Court in case of Rajasthan State TPT Corporation and another vs. Bajrang Lal 2014SCTby following judgment of case Municipal Committee Bahadurgarh vs. Krishna Bihari and others 1996SCT 508 it was held that in cases involving corruption there cannot be any other punishment than dismissal from service. It has also been held that any sympathy shown in such cases is totally uncalled for and contrary to public interest. By considering the total service record and the allegations levelled against him during his service record it cannot be said that his service record was clean. While passing impugned order the entire service record has been scrutinized and taken into consideration including the ACRs.In the present case while passing order of premature 3 on 24 09 LPA No.5920 31 .......retirement the material with regard to utility outlived by the appellant or retiring him for not performing his duty in an effective manner and by considering the allegations against him and also in not maintaining an efficient administration or an objective view of overall performance have not been taken into consideration. Admittedly there is no adverse entry in the service record of the appellant regarding his work and conduct or even his integrity is not doubtful and as such no conclusion can be drawn that it is not in public interest to keep the appellant any more in service of the Government. Meaning thereby the impugned order of premature retirement has been passed without there being any material on record and without being any public interest but in a punitive manner. The service record of the appellant from the year 1999 2000 to 2017 2018 is reflected in annual confidential reports photocopies of which have been submitted by learned State counsel and the same is reproduced as under: Sr. No.YearGrading IntegrityRemarks1.1999 2000GoodHonest12.2000 01i).01.04.2000 to 28.11.2000ii).29.11.2000 to 31.3.2001N.A.Very GoodN.A.Honest 1 33.2001 02N.A.N.A. 4.2002 03N.A.N.A. 5.2003 04GoodHonest16.2004 05GoodHonest1 3 on 24 09 LPA No.5920 32 .......7.2005 06N.A.As per integrity certificate nothing is adverse 8.2006 07N.A.As per integrity certificate nothing is adverse 9.2007 08N.A.As per integrity certificate nothing is adverse 10.2008 09N.A.As per integrity certificate nothing is adverse 11.2009 10OutstandingHonest112.2010 11OutstandingHonest113.2011 12OutstandingHonest114.2012 13Very GoodHonest115.2013 14OutstandingHonest116.2014 15OutstandingHonest117.2015 16OutstandingHonest118.2016 17N.A.N.A. 19.2017 18N.A. N.A. From the facts as mentioned above it can safely be said that there is not material before us which would show that there were adverse remarks in the annual confidential reports or integrity was doubtful at any point of time or the appellant was found to be a man of doubtful integrity or he was not found fit to be retained in service in any manner or his continuation in service was not in public interest. The findings recorded by learned Single Judge are contrary to service record of the appellant and the object and parameters of the policy of premature retirement have not been taken into consideration while 3 on 24 09 LPA No.5920 33 .......dismissing the writ petition filed by the appellant. It appears that the entry in mutation appears to be inadvertent as the name of a person which was entered in the mutation is the same whose reference has been made. At the most it can be said to be a negligence on the part of the appellant as he has not seen his father s name and address. There is no allegation against him that it was done for some consideration as nothing has been pointed out by learned State counsel and no such finding has been recorded by learned Single Judge. Accordingly we allow the present appeal and judgment dated 28.07.2020 passed by learned Single Judge is set aside. The respondents are directed to allow the appellant to be retained in service till the age of his superannuation in case there is no other sufficient reason for not retaining him in service. JUDGE17.09.2020 (MEENAKSHI I. MEHTA)neetu JUDGEWhether speaking reasonedYesWhether ReportableYes 

Summary: The State government has an absolute right to retire an employee in order to weed out ‘deadwood’ from the government services, but this has to be decided on subjective satisfaction about the employee’s performance during service held by Justice Daya Chaudhary and Justice Meenakashi I. Mehta in Hawa Singh Bhambhu v. State of Haryana and Ors [LPA No.593 of 2020]. Facts related to this case is: Appellant (Hawa Singh Bhambhu) was appointed on the post of Patwari in the year 1986 and was promoted as Kanungo on 28.11.2000. Thereafter, he was promoted as Naib Tehsildar w.e.f.28.10.2016 till dated 09.01.2017. He was prematurely retired vide order dated 01.04.2020 on attaining the age of 55 years w.e.f.22.07.2020 after giving three months ‘prior notice. As per the case of the appellant, his service record was excellent and he was given promotions on the basis of his work and conduct. He was issued a charge sheet on 21.02.2018 on account of filing an appeal with the delay before this Court but subsequently, he was exonerated vide order dated 18.04.2019. Thereafter, he was issued another charge sheet on 13.02.2018 on account of dereliction of duty for wrong registration of mutation in the year 2009 while he was working as Kanungo. Then, premature retirement was challenged in CWP No.7767 of 2020 and the same was dismissed by learned Single Judge on 28.07.2020, which has been challenged in the present appeal at Hon’ble High Court of Punjab and Haryana. The Hon’ble Court observed that “On perusal of above said Rule 144 of the Rules, 2016, it is apparent that an employee can be retired prematurely on attaining the specified age on the ground of inefficiency and overall service record. The object of said rule is to weed out the deadwood in the public interest.” The main object of said policy decision is to provide clean administration, improving efficiency and strengthening administrative machinery at all levels and weed out deadwood whose integrity is doubtful. It was further held that “While passing order of premature retirement, the competent authority is to ensure the application of mind to the record of the employee for making an objective analysis with a view to see whether such employee is fit to be continued in service or not. It is also to be seen whether his/her extension in service on attaining the age of 55 years or on completion of 25 years of qualifying service is in the public interest. The border-line cases or the employees, who had shown consistent improvement in their work and performance may be considered for an extension of one year provided they have not earned adverse remarks reflecting their integrity.” It has been a settled principle in various judgments of Hon’ble Apex Court that compulsory/premature retirement is not a punishment as it does not leave any stain or stigma. The Punishing Authority has a right to review the work and conduct of the employee and the total service record of the concerned employee is to be taken into consideration before making a decision in the matter- of course attaching more importance to record and performance during the service period. The service record includes entries in the confidential records/character rolls, both favourable and adverse. The order, as such, was to be passed on the basis of subjective satisfaction by the Competent Authority on forming an opinion that it was not in the public interest to keep the government employee in service or to retire him compulsorily. It is also not disputed that principles of natural justice have to be adopted and the order was not to be passed in an arbitrary manner without forming an opinion by considering the total service record. No doubt, judicial scrutiny has also been permissible while granting premature compulsory retirement and in case the order was arbitrary or mala fide or was based on no evidence, then reasons were necessary to be recorded. Accordingly, the Court allowed the present appeal and judgment dated 28.07.2020 passed by learned Single Judge is set aside. The respondents were directed to allow the appellant to be retained in service till the age of his superannuation in case, there was no other sufficient reason for not retaining him in service. Click here to read the judgement