Hav. Kamal Prasad vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1484 Del

JUDGMENT

Swatanter Kumar, J.

1. In this petition under Article 226 of the Constitution of India, the petitioner prays for issuance of appropriate writ, order or directions quashing the order dated 23rd June, 2006 vide which the petitioner has been found unfit to be retained in service till superannuation and his name stand struck off from the strength of the Unit with effect from 22nd September, 2006, which was in furtherance to the show cause notice dated 3rd March, 2006. The petitioner has also prayed that the respondents be directed to produce his confidential reports for the years 2002-03 to 2004-05 for just and fair adjudication of the present case.

2. The necessary facts are that petitioner was enrolled as a Constable with the Central Reserve Police Force, New Delhi on 27th October, 1980. Because of his hard work and devotion to duty, the petitioner was promoted to the rank of Havildar on 10th October, 1997. On 3rd March, 2006, the respondents issued a notice to show cause to the petitioner stating that the petitioner was unfit for further retention in service and why he should not be compulsorily retired after completing 25 years of service in accordance with rules. To this show cause notice, the petitioner submitted a reply on 8th March, 2006 and finally the respondents passed an order on 23rd June, 2006 refusing further extension in service to the petitioner and compulsorily retired him from service upon completion of 25 years of qualifying service for pension.

3. The primary grievance of the petitioner is that though the petitioner was awarded some penalties during the period 1989 to 2000 and 2002 but thereafter the petitioner had worked to the entire satisfaction of all concerned and has unblemished service record, thus the decision of the respondents to compulsorily retire the petitioner is arbitrary, contrary to rules/regulations and the instructions issued by the respondents themselves.

4. During the course of hearing, we had directed the respondents to produce the records of the petitioner, which were produced and examined by the Court.

5. Vide show cause notice dated 3rd March, 2006, the respondents had informed the petitioner as under:

The Inspector General of Police - Special Sector CRPF's third monthly - 31.09.2005 board proceedings issued by the Administrative Review Committee, which was received in this office through the Dy. Inspector General of Police, CRPF Gwalior vide their letter No. A4-1/05-Estt-1 dated 08.02.2006 in which it has been observed that the Force No. 800653789 Hav./GD. Kamal Prasad in the entire service period has been awarded the penalty five times (1989, 95, 96, 2000 & 2002) including the penalty of dismissal from service also on the basis of joint departmental enquiry in which while deciding the appeal of the individual was reinstated by the appellate authority. In spite of this in the year 2000 a penalty of stoppage of two years increment was awarded too. In the annual confidential report of the year 2002 there are adverse comments regarding inefficiency and habitual of drinking liquor. Therefore the Administrative Review Committee of Sector Headquarter has found you, as burden on the force and you have not been found able to perform the duties of force to the appropriate level, to further continue in force. In the end the Administrative Review Committee scrutinized the document related to your compulsory retirement at the judicial level and you were found unfit to be retained in the services and in the public interest after completion of your 25 years of service or completing 50 years of your age whichever is earlier the compulsory retirement has been recommended/directed.

6. The petitioner was called upon to show cause as to why authorities should not pass appropriate orders. In reply to this show cause notice, the petitioner had not disputed the facts of imposing various penalties but had stated that he had undertaken various assignments in the form of emergency duties in different parts of the country and had worked for betterment of the force. He also took up the plea that even in 2001 he was assigned a job to give training to two new battalions of the CRPF i.e. 144 and 155, which he had trained and received applauds from the concerned authorities. He reiterated that his record after 2001 was in no way prejudicial and as such he should not be compulsorily retired from service as it will affect his retiral benefits as such.

7. As is evident from the show cause notice itself, the competent authorities had considered the entire service record of the petitioner. The authorities have applied their mind and while applying a uniform criteria have passed the impugned order. The Review Committee, which had assembled in furtherance to the orders of IGP, Special Sector, CRPF dated 20th January, 2006, had examined the service records, recommendations of the concerned range DIGPS' and confidential cards of all the personnels, who had completed 25/30 years of service or had attained the age of 50/55 years as on 31st March, 2006. After considering these records and due deliberation, the Committee had recommended nearly 32 personnels of different ranks fit for retention in service till superannuation. However, the case of the petitioner was not found fit for further retention in service till superannuation. The Committee consists of three members. The chairman of the Committee was of the rank of IGP while other two members were of the rank of ADIGP (Admn) and Comdt.(Accts) respectively. The findings of the Committee in respect of the petitioner read as under:

4. The review committee has examined the case of No. 800653789 HC/GD Kamal Prasad of 126 Bn carefully. The said HC/GD has been awarded punishment on 05 occasions during 1989, 1995, 1996, 2000 & 2002. Besides this, as a result of Joint D.E. Conducted against 04 personnel (including above HC/GD) he was dismissed from service w.e.f. 2/6/99 but the appellate authority ordered for Denovo enquiry and reinstated above individual into service as result of appeal preferred by the individual. Later on as a result of Denovo enquiry, punishment of stoppage of increment for a period of 02 years without cumulative effect was awarded to the individual on 22/12/2000. His performance has been adversely commented in ACR for the year 2002, which reflects that he is habitual of taking liquor. His records gives an indication that he is a liability to the force and has no dedication. On the whole, HC/GD Kamal Prasad does not seem to be capable of performing his duties with the desired level of efficiency and as such his further retention in the Force is not found desirable.

8. From the above recorded findings, which are supported by the records, it cannot be said by any stretch of imagination that the decision of the review committee, on which the competent authority had acted upon due application of mind, is arbitrary or is a colourable exercise of power. Mere fact that there are no adverse entries in the service record of the petitioner subsequent to the year 2002 per se would be of no consequence. This Court does not sit as an appellate authority and has to only examine that the decision of the competent authority and the process of decision are not arbitrary or perverse. Merely because another view could be taken, would be no ground for this Court to interfere in such administrative decisions in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. At this stage, reference can also be made to a recent judgment of this Court in the case of Shri Ganga Singh Sengar v. Union of India and Ors. (WP(C) No. 1577/85 decided on 13th July, 2006) wherein in somewhat similar circumstances, the Court held as under:

7. The power of the authorities to retire the petitioner compulsorily is not questioned. The show cause notice itself was served upon the petitioner while referring to Rule 26 of the B.S.F Rules. The petitioner had submitted a reply to the said show cause notice and had taken no such objection as has now been taken in the rejoinder filed in this Court. Once a show cause notice was served upon the petitioner to which he has submitted a reply and thereafter the authorities have passed the order dated 5.7.84, apparently, there is compliance to the provisions of natural justice. The petitioner has not been condemned unheard. The authorities have looked into his entire service record and then passed the impugned order. In the cases of Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr. and State of Orissa and Ors. v. Ram Chandra Das the Supreme Court had clearly held that the entire service record of the employee has to be considered for taking a proper decision whether an employee should or should not be retained further. Reference can also be made to the judgment of SI Tara Chand v. State of Haryana and Ors. in CWP No. 5254/02 decided on 11.4.02 where the Court in somewhat similar circumstances held as under:

This is not even the pleaded case of the petitioner that the nine punishments mentioned in the impugned order over a long span, were ever subjected to such consideration and any order removing the said disqualification for empanelment of petitioner in lists A, B or C was passed. In any case, this provision would have no relevancy for a case of compulsory retirement inasmuch as the Hon'ble Apex Court in the case of State of Orissa and Ors. v. Ram Chandra Das has clearly held that the entire service record of an employee has to be considered by the competent authority while passing an order of the present kind. Further more, it has also been held by the Apex Court that promotion of an employee by itself will not have the effect of wiping out the adverse entries. The entire service record would have to be considered by the competent authority subjectively. Even the reliance placed by the petitioner on the case of Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr. is entirely ill-founded. Even in that case the Hon'ble Apex Court has held that the entire service record has to be considered and more importance is to be given to the record of later years.

Conclusion of an authority for pre-mature retirement of an employee is a subjective decision which is arrived at by objective considerations merely on the basis of the service record of the employee. The Courts do not sit in appeal over such decisions. The High Court would interfere in such decisions only if the order was patently unfair, unjust or violative of principles of natural justice. In this regard, reference can be made to the case of S.I. Nanak Singh v. State of Haryana 1997(3), R.S.J.299.

Lastly, the learned Counsel for the petitioner had contended that the details mentioned by the petitioner in the reply to the show cause notice have not been properly, considered by the competent authority. This argument again has no merit. The impugned order is based upon records which obviously includes the service record of the petitioner. The petitioner was admittedly given a show cause notice to which he replied. The facts noticed in the impugned order can hardly be disputed. Nine punishments have been inflicted upon the petitioner.

8. From the above enunciated principles of law, it is clear that the entire service record of the petitioner could be examined by the authorities in order to arrive at a conclusion whether the petitioner could or could not be continued in service. This is a satisfaction which falls in the domain of the authorities and the Court would not sit as an Appellate Authority and substitute its view with the view taken by the authorities unless the decision was ex-facie arbitrary and contrary to the record or was in violation to the specific rules framed by the concerned authorities.

9. In addition to above, the principle that authorities are competent to look into the entire service record of the official before they pass an order of the present kind is also equally well settled. Exercise of such authority cannot be said to be without jurisdiction so as to result in vitiating the order of compulsory retirement. Reference in this regard can be made to the different judgments of the Supreme Court in the cases of S. Ramachandra Raju v. State of Orissa and State of Orissa and Ors. v. Ram Chander Dass .

10. The contention of the learned Counsel for the petitioner that ACRs subsequent to the period of 2002 would have the effect of wiping out earlier adverse entries and would vitiate the order of compulsory retirement of the petitioner is also without any substance. Even if a person is promoted to higher post that by itself will not have the effect of wiping out the adverse entries existing in the service record of the petitioner. The authorities would be well within their right to consider the entire service record of the petitioner unless and until there were specific rules or instructions specifically excluding service record of the concerned employee, beyond a particular period, from the zone of consideration. In this regard reference can also be made to the judgment of Supreme Court in Ram Chander Dass's case (supra) and judgment of the Punjab & Haryana High Court in the case of Hari Krishan Sirohi v. State of Haryana and Ors. 2002 (3) Recent Service Judgment 140.

11. There is no dispute before us that right from 1989 till 2002 various punishments were inflicted upon the petitioner. He was also dismissed from service. However, upon reconsideration of the matter and holding of de-novo enquiry, this punishment was reduced to stoppage of 2 increments without cumulative effect. In fact the very principle behind retiring a Government servant is in public interest and such decision should primarily be based upon evaluation of entire service record of the concerned employee. The object of such rule is backed by the purpose of weeding out the dead wood from service cadre. The authorities may be well within their rights to deny continuation in service even to an average employee who may not, in view of the authorities concerned, be useful to the concerned department. Utility of a Government servant for its department is a matter, which would fall on a subjective decision of the authorities taken objectively. The satisfaction has to be of the authorities and of course to be taken in complete comity to the relevant rules and principles of law governing that field. The impugned order in the present case does not suffer from any of the defects, which would vitiate the order in any manner whatsoever.

12. For the reasons recorded above, we do not find any merit in the writ petition. The same is accordingly dismissed, while leaving the parties to bear their own costs.