Delhi High Court
Shri Balwinder Singh vs Union Of India & Ors. on 23 March, 2011
Author: Gita Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23rd March, 2011
+ WP (C) No.12820/2009
SHRI BALWINDER SINGH ..... Petitioner
Through Ms. Rekha Palli, Adv. with
Ms. Punam Singh, Adv. &
Ms. Amrita Prakash, Adv.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Sachin Datta, Adv. with
Ms. Manikya Khanna, Adv. &
Ms. Gayatri Verma, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
HON'BLE MR. JUSTICE J.R. MIDHA
1. Whether reporters of local papers may be allowed to
see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
GITA MITTAL, J
1. The present writ petition has been filed by the petitioner praying
for issuance of a writ of certiorari quashing the order dated 6 th October,
2009 retiring the petitioner from service as well as the order dated
21st/22nd May, 2009 passed by the respondent no.1 rejecting the
petitioner's representation against his premature retirement. The
petitioner also prays for issuance of a writ of mandamus directing the
respondents to reinstate the petitioner with all consequential benefits.
2. So far as the basic facts are concerned, there is no dispute. To
the extent necessary, the same are briefly noticed hereafter. On 28 th
June, 1982, the petitioner was appointed as an Assistant Sub-Inspector
(Executive) in the Central Industrial Security Force ('CISF' hereafter).
On 7th July, 1984, the petitioner was promoted as sub-inspector in the
service. Further promotion was earned by the petitioner on 25th May,
1990 as an inspector.
3. The respondents have further pointed out that on 8th May, 2006,
the petitioner was promoted as an Assistant Commandant and had
assumed the charge of DSP, Durgapur.
4. The petitioner points out that after his promotion as Assistant
Commandant, he had earned an `average' ACR for the period from 8th
May, 2006 to 31st March, 2007 and a `good' ACR for the period from 1 st
April, 2007 to 31st March, 2008. The petitioner had completed his
probation period as Assistant Commandant during this period. An
order dated 2nd September, 2008 was passed by the respondent no.3 -
the Deputy Inspector General (Pers), Central Industrial Security Force,
New Delhi, whereby the petitioner's satisfactory completion of
probation period on 7th May, 2008 was declared. The petitioner was
thereafter transferred as Assistant Commandant to the 4th Battalion
which he had joined on 24th April, 2009.
5. The respondents have placed a statement of the Annual
Confidential Reports which were earned by the petitioner for the entire
period of 27 years of the petitioner's service. The same shows that out
of these 44 ACRs, only seven were 'average' while all other ACRs were
either 'good' or 'very good'. The respondents have asserted that
adverse remarks were recorded in the ACRs of the petitioner for the
period of 1st January, 1996 to 31st December, 1996 and 1st January,
1998 to 23rd June, 1998.
6. The record placed before this court by the respondents would
show that in the service career of the petitioner spanning 27 years, the
following penalties have been imposed upon the petitioner:-
(i) Five penalties within a span of one month in June, 1998.
(ii) Two censures; one in 1986 and the other in 1996.
The petitioner has pointed out that the punishment no.7 in the
statement of punishment filed by the respondents on record, was
reduced by the order dated 16th May, 2000 passed by the Appellate
Authority.
(iii) On 24th September, 2001, a minor penalty of fine equivalent to
three days pay was imposed upon the petitioner.
7. In this behalf, the petitioner has pointed out that for the period
from 1st January, 1998 to 23rd June, 1998 when the petitioner was
posted at ONGC, Nazira, his the then Commandant Lt. Col. R.N. Mann
had a biased and vindictive attitude against him. This is manifested
from the fact that in one single month of June, 1998, nine punishments
were awarded to the petitioner out of which five punishments were
awarded by the Commandant himself and the other four punishments
were awarded by the Assistant Commandant working under the
directions of the Commandant. The fifth punishment is stated to have
been awarded by the DIG. It is pointed out that the petitioner was
unable to challenge this punishment for the reason that he was posted
in different units and that in the period immediately thereafter from
24th June, 1998 to 30th December, 1998, the petitioner had earned a
very good report.
8. It is noteworthy that even assuming that such remarks and
punishment had been correctly given, the same did not impact the
service profile of the petitioner in any manner.
9. Even for the period from 1st April, 2007 to 31st March, 2008, the
petitioner has a 'good' ACR. The petitioner has earned due promotions
on time. The respondents have also pointed out that on 7th May, 2008,
the petitioner promoted as Assistant Commandant in 2006, long after
the afore-noticed adverse ACRs and punishments and had even
successfully completed his probation.
10. It is submitted by learned counsel for the petitioner that the
petitioner has never been superseded or overlooked for any promotion
and all promotions have been earned by him on time for the purposes
of his service record. The only punishment adverted to by the
respondents after 1998 was a three day pay fine given to the
petitioner on 24th September, 2001. This punishment also did not mar
either the petitioner's punishment or his service profile for the reason
that he received all timely promotions thereafter. Even this minor
punishment was imposed eight years prior to the consideration of the
petitioner's case under Rule 56(j).
11. In view of the stand taken by the respondents, this court had
passed an order dated 13th April, 2010 in which this court had noted
the submission on behalf of the petitioner that despite repeated
requests by the petitioner for furnishing copies of the ACRs especially
having regard to the impugned orders, the same had not been
furnished to the petitioner. We had also noted that though the
respondents had placed a statement of punishments awarded to the
petitioner but copies of the orders of punishments which were passed
against the petitioner had not been placed on record. In this
background, the respondents were directed to file an affidavit placing
the ACRs of the petitioner as well as the copies of the orders imposing
punishments upon the petitioner.
12. In purported compliance of these orders, the respondents have
filed an affidavit dated 16th July, 2010, submitting that the order of
punishment dated 10th December, 1986 is not available and the only
record available is the entry in the service book of the petitioner. It is
submitted that the record was old and there was difficulty in tracing it
out. Even the complete record with regard to the orders of 1998 could
not also be placed for the reason that an order dated 22nd June, 1998
was in a wretched and torn condition. So far as the ACRs are
concerned, the respondents have set up a plea that they were
confidential documents and consequently were not filed on record.
13. The affidavit dated 16th July, 2010 filed by the respondents
manifests the plea of the petitioner that the punishments as well as
adverse entries relating to the years 1986, 1996 & 1998 which were a
decade prior to the passing of the impugned order, have not adversely
affected his service career. The last adverse remarks in the ACRs were
in the year 1998 while the punishment lastly imposed upon him in
2001 was minor punishment.
14. The petitioner has submitted that he completed 50 years of age
on 11th May, 2009. After he had joined the posting at 4th Battalion,
CISF on 24th April, 2009, he received the impugned order dated 22nd
May, 2009 thereafter informing him that he was being retired with
immediate effect under Rule 56 (j) of the Fundamental Rules.
15. Aggrieved thereby, the petitioner made a representation dated
9th June, 2009 to the respondent no.2 - Director General, CISF, New
Delhi which was returned to him under cover of a letter dated 21st July,
2009 informing him that he was required to make a representation to
the President of India. The petitioner thereafter made a representation
dated 27th July, 2009 to the President of India which was rejected by an
order passed on 6th October, 2009. The present writ petition has been
filed in these circumstances.
16. The primary ground of challenge to the impugned action is
premised on the petitioner's contention that he had rendered 'good'
service for a long period of 27 years which was manifested by not only
his ACR record but the fact that he was given due promotion as late as
in May, 2006 and had also successfully completed his probation period
in May, 2008. It is urged that there is no element of public interest in
the premature retirement of the petitioner by the impugned order
dated 21st/22nd May, 2009 by invocation of Rule 56(j) of the
Fundamental Rules.
17. So far as Rule 56 (j) of the Fundamental Rules is concerned, the
same reads as follows:-
"56(j) Notwithstanding anything contained in this
rule, the appropriate authority shall, if it is of the
opinion that it is in the public interest so to do, have
the absolute right to retire any government servant
by giving him notice of not less than three months
in writing or three months' pay and allowances in
lieu of such notice:
(i) if he is in Class I or Class II
service or post and had entered
government service before attaining
the age of thirty-five years, after he
has attained the age of fifty years;
(ii) in any other case after he has
attained the age of fifty-five years.
Provided that nothing in this clause shall
apply to a government servant referred to in clause
(e) who entered government service on or before
23-7-1966."
18. The respondents have placed reliance on the instructions
contained in the Office Memorandum E-25013/14/7 Estt.(A) dated 5th
January, 1978 issued by the Department of Personnel & Administrative
Reforms in the Ministry of Home Affairs. According to these
Government instructions, the cases of Class I & II Officers are required
to be reviewed by the appropriate review committee for further
retention in service beyond 50 years of age if a person entered in
service before attaining the age of 35 years and in all other cases,
after attaining the age of 55 years.
19. The respondents have urged that inasmuch as the petitioner
joined the Government service before attaining the age of 35 years, his
case was required to be reviewed when he attained the age of 50
years. Accordingly, an internal screening committee consisting of
Director General of the CISF as Chairman; Inspector General (NS), DIG
(Pers.) and DIG (Administration) as members was constituted at the
CISF Headquarters, New Delhi. This screening committee met on 26 th
February, 2009 at the CISF Headquarters, New Delhi to screen cases
which were covered under FR 56(J) of the Fundamental Rules. This
committee took into consideration the overall performance of the
officer; ACRs; gist of adverse/advisory remarks recorded therein;
punishments; details of departmental inqueries; vigilance and service
records of the petitioner. The committee made the following
observations while recommending the petitioner's premature
retirement:-
"(i) The integrity of the officer was not certified on
one occasion.
(ii) He was found to be ineffective and has been
identified as "Unfit" to continue in the post of
Assistant Commandant which he was holding.
(iii) At the time of review, the entire service record
of the officer was considered and during the preceding
five years of service the performance of the officer
was not found satisfactory, viz., he has earned three
Good and two Average grading."
20. The case of the petitioner is stated to have been placed
thereafter before the review committee in the Ministry of Home Affairs.
This review committee comprised of Joint Secretary (Department of
IPP) and the Special Secretary (Internal Security) and it approved the
recommendations of the afore-noticed internal screening committee.
In this background, the petitioner was retired prematurely on 22nd May,
2009 with the approval of the Home Ministry.
21. So far as adverse remarks in his ACRs of the petitoner are
concerned, the petitioner contends that he was given adverse remarks
only in the ACRs for the two periods in 1996 & 1998. Such remarks
were found in the ACRs for the period 1st January, 1998 to 23rd June,
1998. We find that despite the adverse remarks for the period 1st
January, 1996 to 31st December, 1996, the petitioner had been
assessed as `good' in the ACR for the year 1996. Further for the
period 1st January, 1998 to 23rd June, 1998, despite the adverse
remarks, the petitioner's work has been assessed as `good' in the first
ACR and `average' in the second ACR.
22. The petitioner has assailed the impugned orders inter alia on the
ground that the same are based on irrelevant material and reflect no
application of mind. It needs no elaboration that an order is required
to be passed on relevant material in order to be sustainable in law.
23. We find that there is no allegation that any disciplinary inquiry or
vigilance inquiry was pending against the petitioner.
24. So far as the Annual Confidential Reports of the Adverse/advisory
remarks are concerned, such remarks were made only on three
occasions relating to the years 1986, 1996 & 1998. The last
punishment against the petitioner was also a minor penalty in the year
2001.
25. The service profile of the petitioner reflects that out of these 44
ACRs, only seven were 'average' while all other ACRs were either
'good' or 'very good'. It is submitted that the petitioner had
successfully completed the period of probation after his promotion as
Assistant Commandant on the 7th May, 2008.
26. The respondents have also highlighted the petitioner's ACRs for
the six months period between 1st January, 1998 to 23rd June, 1998
when the Commandant had recorded that the petitioner's integrity was
doubtful. Despite this comment, for the same period, the petitioner
was given an `average' ACR. The petitioner has pleaded mala fide
and vindictiveness on the part of the Commandant while referring to
the fact that in the month of June, 1998, alone nine punishments were
imposed upon him, out of which five punishments were awarded by
this very commandant. The submission on behalf of the petitioner in
this behalf is also supported by the fact that for the twelve months
period immediately from 1st January, 1997 to 31st December, 1997, the
petitioner had a `good' ACR while for the succeeding period from 24th
June, 1998 to 31st December, 1998, the petitioner had a `very good'
ACR.
27. The adverse comments in the ACRs even for the period from 1 st
January, 1996 to 31st December, 1996 did not impact the assessment
of work which had been assessed as `good'.
28. The adverse remarks in the ACRs for the period from 1 st January
to 31st December, 1996 as well as the six months period from January,
1998 to June, 1998 had not impacted the petitioner's career at all. In
this behalf, it is pointed out that on 8th May, 2006, the petitioner was
duly promoted to the rank of Assistant Commandant after scrutiny and
consideration by the Union Public Service Commission which had
considered the entire service career of the petitioner.
29. In support of the contention that the adverse remarks which
according to the respondents are the basis of the impugned order,
were too remote in time and cannot justify the impugned order,
reliance has been placed on the judgment reported at 112 (2004)
DLT 150 V.K. Issar Vs. UOI wherein the court held as follows:-
"5. In the instant case, we are concerned with the
question as to whether the petitioner could have
been compulsorily retired on the consideration of his
remote alleged adverse entries for the period 1976,
1977, 1989-90 and 1992-1993 in view of the fact
that the respondents themselves have promoted the
petitioner as Deputy Commandant in the year 1992.
If the respondents have promoted the petitioner in
the year 1992 to the post of Deputy Commandant
and the adverse entry in the subsequent period
1996-97 have been expugned by the respondents,
the respondents cannot be permitted to
compulsorily retire the petitioner on the basis of
remote ACRs when nothing adverse come to the
notice of the authorities after 1992 till the order of
compulsory retirement was made. Even in the
counter affidavit filed by the respondents, the stand
of the respondent is not that the order of
compulsory retirement was passed on account of
petitioner's integrity being doubtful or his work and
conduct was unsatisfactory. In paragraph 9 of the
counter affidavit, respondents have stated that
petitioner was retired as he was an average officer.
Rule 56(j) of the Fundamental Rules cannot be used
to get rid of an officer who is average. It may be
invoked to get the dead wood out. Nothing to that
effect has been stated in the counter affidavit nor
any material has been placed before us to justify the
stand of the respondent."
30. Our attention has also been drawn to the pronouncement of the
Supreme Court reported at (2002) 3 SCC 641 State of U.P. &
Others Vs. Vijay Kumar Jain. In this case, the court was concerned
with similar power to compulsory retire a government servant which is
provided in Rule 56 of the U.P. Fundamental Rules which is similar to
the Rule 56 (j) of the Fundamental Rules under which the respondents
have proceeded against the petitioner. So far as the object and
intendment of this Rule is concerned, in para 15 of the judgment, the
Supreme Court had observed as follows:-
"15. The aforesaid decisions unmistakably lay
down that the entire service record of a
government servant could be considered by the
Governmentn while exercising the power under FR
56(c) of the Rules with emphasis on the later
entries. FR 56(c) of the Rules read with
Explanation (2), empowers the State Government
with an absolute right to retire an employee on
attaining the age of 50 years. It cannot be
disputed that the dead wood need to be removed
to maintain efficiency in the service. Integrity of a
government employee is foremost consideration in
public service. If a conduct of a government
employee becomes unbecoming to the public
interest or obstructs the efficiency in public
services, the Government has an absolute right to
compulsorily retire such an employee in public
interest. The Government's right to compulsorily
retire an employee is a method to ensure efficiency
in public service and while doing so the
Government is entitled under Fundamental Rule 56
to take into account the entire service record,
character roll or confidential report with emphasis
on the later entries in the character roll of an
employee. In fact, entire service record, character
roll or confidential report furnishes the materials to
the Screening Committee or the State Government,
as the case may be, to find out whether a
government servant has outlives his utility in
service. It is on consideration of totality of the
materials with emphasis on the later entires in the
character roll, the Government is expected to form
its opinion whether an employee is to be
compulsorily retired or not."
31. On the question of adverse entries which could be looked at by
the authorities concerned, the respondents have placed reliance on the
following:-
"16. Withholding of integrity of a government
employee is a serious matter. In the present case,
what we find is that the integrity of the respondent
was withheld by an order dated 13-6-1997 and the
said entry in the character roll of the respondent
was well within ten years of passing of the order of
compulsory retirement. During pendency of the
writ petition in the High Court, the U.P. Services
Tribunal on a claim petition filed by the respondent,
shifted the entry from 1997-98 to 1983-84. Shifting
of the said entry to a different period or entry going
beyond ten years of passing of the order of
compulsory retirement does not mean that vigour
and sting of the adverse entry is lost. Vigour or
sting of an adverse entry is not wiped out, merely it
is relatable to 11th or 12th year of passing of the
order of compulsory retirement. The aforesaid
adverse entry which could have been taken into
account while considering the case of the
respondent for his compulsory retirement from
service, was duly considered by the State
Government and the said single adverse entry in
itself was sufficient to compulsorily retire the
respondent from service. We are, therefore, of the
view that entire service record or confidential report
with emphasis on the later entires in the character
roll can be taken into account by the Government
while considering a case for compulsory retirement
of a government servant.
17. It was not urged before us that the order
compulsorily retiring the respondent was mala fide
or was not in the public interest, and in the absence
of such a case, we do not find any infirmity in the
order compulsorily retiring the respondent from
service."
In this pronouncement, the Supreme Court had categorically laid
down the principle that the respondents have to examine the relevant
materials in order to arrive at a conclusion that an employee had
outlived his utility in service and take into account the entire service
record, character as well as the annual confidential reports with
emphasis on the later entries in the character roll of the employee.
Before us, it is an admitted position that there is nothing adverse in
the service profile of the petitioner after June, 1998 and that he has
received due promotions as well as satisfactorily completed the
probation period.
32. The respondents have also placed reliance on the
pronouncement of the Apex Court reported at (1996) 3 SCC 672
Union of India Vs. P.S. Dhillon to contend that even though the
petitioner may have successfully completed his period of probation at
the promoted post, the respondents were justified in looking at the
confirming the adverse material. In this case, the court was concerned
with the exercise of power under Rule 56 (j) by the respondents. So far
as the respondent who had been appointed as the Member of the
Income Tax Appellate Tribunal was concerned, the factual narration
which was noticed in para 15 sets out the circumstances in which the
material against the respondents which weigh with the court deserves
to be considered in extenso and reads as follows:-
"15. Keeping in view the circumstances attendant to
his confirmation as member of the ITAT with effect
from 1-4-1985, we are unable to agree with the
Tribunal that after such confirmation the adverse
material on the record for the period prior to 1.4.1985
should be disregarded. In our opinion, the entire
service record of the respondent including the record
for the period prior to 1-4-1985 had to be taken into
consideration by the appropriate authority. The
service record of the respondent shows:
(i) There were complaints about his
behaviour from the members of the Bar
and his colleagues and the staff in the
ITAT and his confirmation as member was
delayed till 1-4-1985 and he was given six
extensions in the period of probation.
(ii) The remarks in the ACR for the year
ending 31-12-1985 show that there was
no improvement in his behaviour as well
as his performance.
(iii) There was complaint about his
conduct by his wife that he was living with
another lady which fact was not disputed
by him when he was given a hearing by
the Law Minister on 5-11-1986."
33. In para 16 of the said pronouncement in UOI Vs. P.S. Dhilon
(supra), the Supreme Court had categorically stated that having
regard to the circumstances noticed above, it was not possible to say
that there was no sufficient material for the appropriate authority to
form the requisite opinion that further retention of the respondent in
service was not in public interest. In the instant case, no complaints or
allegations with regard to the record of the petitioner in the instant
case have been pointed out by the respondent's conduct. On the
contrary, the petitioner's last ACR preceding his premature retirement
was a `good' ACR.
34. Learned counsel for the petitioner has placed before this court
the pronouncement of the Supreme Court reported at (2009) 15 SCC
221 M.P. State Cooperative Dairy Federation Vs. Rajnesh
Kumar Jamindar. In this judgment, the Supreme Court placed
reliance on several previous pronouncements laying down the binding
principles on which the power of compulsory retirement in public
interest could be validly exercised. The principles extracted by the
Supreme Court from the prior judicial precedents may be usefully
considered in extenso and reads as follows:-
"35. The law relating to compulsory retirement in
public interest is no longer res integra. The provisions
had been made principally for weeding out dead wood.
An order of compulsory retirement being not penal in
nature can be subject to judicial review inter alia:
(i) When it is based on no material;
(ii) When it is arbitrary;
(iii) When it is without application of mind; and
(iv) When there is no evidence in support of the
case.
36. In Baikuntha Nath Das and Anr. v. Chief District
Medical Officer, this Court held: (SCC Public Premises
(Eviction of Unauthorised Occupants) Act, 1971.315-16,
para 34):
"34. The following principles emerge from the
above discussion:
(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 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 passed (a)
mala fide or (b) that it is based on no evidence
or (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 interference."
37. In State of Gujarat v. Umedbhai M. Patel, this
Court held:
11. The law relating to compulsory retirement has now
crystallised into definite principles, which could be
broadly summarised thus:
(i) Whenever the services of a public
servant are no longer useful to the general
administration, the officer can be
compulsorily retired for the sake of public
interest.
(ii) Ordinarily, the order of compulsory
retirement is not to be treated as a
punishment coming under Article 311 of the
Constitution.
(iii) For better administration, it is
necessary to chop off dead wood, but the
order of compulsory retirement can be
passed after having due regard to the
entire service record of the officer.
(iv) Any adverse entries made in the
confidential record shall be taken note of
and be given due weightage in passing
such order.
(v) Even uncommunicated entries in the
confidential record can also be taken into
consideration.
(vi) The order of compulsory retirement
shall not be passed as a short cut to avoid
departmental enquiry when such course is
more desirable.
(vii) If the officer was given a promotion
despite adverse entries made in the
confidential record, that is a fact in favour
of the officer.
(viii) Compulsory retirement shall not be
imposed as a punitive measure.
38. In Pritam Singh v. Union of India and Ors. , this
Court held (SCC p.753, paras 13 & 16):
"13. In our opinion, the High Court has
committed an error in not interfering with the
punishment of compulsory retirement even
though the appellant submitted that the
misconduct alleged against him was not at all an
offence or even a serious mistake. The act of
misconduct alleged against him was that he
supplied a list of absentee details to one of the
employees, who was fighting a case before the
Tribunal against the Railways. This list contained
the ticket numbers of the workers of a shop,
who were absent on that date. This was neither
a confidential document nor a privileged
document. It contained details to which the
employee concerned had a right of information.
The appellant being a Superintendent Grade II
and in charge of the information acted bona fide
in good faith while supplying the information. In
our opinion, this kind of an act was neither a
misconduct nor a serious mistake. When the
charges were found proved against the
appellant, the appellant admitted that he had
supplied the absentee details.
*** *** ***
16. This Court in the case of Union of India v. G.
Ganayutham, MANU/SC/0834/1997 while
examining the scope of judicial review held that
"reasonableness", "rationality" and
"proportionality" are the grounds on the basis of
which judicial review of the administrative order
can be undertaken. Considering the facts
extracted hereinbefore, we find that the
exercise of power by the respondent falls in the
category of arbitrary exercise of power."
xxx xxx xxx
43. It is now a well-settled principle of law that the
employer would be bound by the rule of game. It must
follow the standard laid down by itself. If procedures
have been laid down for arriving at some kinds of
decisions, the same should substantially be complied
with even if the same are directory in nature. This
rule was enunciated by Mr. Justice Frankfurter in
Vitarelli v. Seaton 359 US 535, wherein the learned
Judge said:
"An executive agency must be rigorously
held to the standards by which it professes
its action to be judged. ... Accordingly, if
dismissal from employment is based on a
defined procedure, even though generous
beyond the requirements that bind such
agency, that procedure must be scrupulously
observed. ... This judicially evolved rule of
administrative law is now firmly established
and, if I may add, rightly so. He that takes the
procedural sword shall perish with that
sword."
(See also H.V. Nirmala v. Karnataka State Financial
Corpn., at SCC p.645, para 14)
44. The power of judicial review of a superior court
although a restricted one, has many facets. Its
jurisdiction is not only limited in the cases where the
administrative orders are perverse or arbitrary but
also in the cases where a statutory authority has
failed to perform its statutory duty in accordance with
law. An order which is passed for unauthorized
purpose would attract the principles of malice in law.
[See Govt. Branch Press v. D.B. Belliappa, S.R.
Venkataraman v. Union of India and P. Mohanan Pillai
v. State of Kerala)
45. It is a well-settled principle of law that an order of
compulsory retirement is found to be stigmatic inter
alia, in the event the employer has lost confidence
[See Chandu Lal v. Management of Pan American
World Airways Inc., SCC at p.730, para 8), or he has
concealed his earlier record [See Jagdish Parsad v.
Sachiv, Zila Ganna Committee, Muzaffarnagar and
Anr. (1986)ILLJ513SC]. He can, however, be subjected
to compulsory retirement inter alia if he has outlived
his utility [The State of Uttar Pradesh v. Madan Mohan
Nagar (1967)IILLJ63SC].
46. In Allahabad Bank Officers' Association and Anr.
v. Allahabad Bank and Ors. MANU/SC/0503/1996 :
(1996)IILLJ519SC , it was held:
"17. The above discussion of case-law makes it
clear that if the order of compulsory retirement
casts a stigma on the government servant in the
sense that it contains a statement casting
aspersion on his conduct or character, then the
court will treat that order as an order of
punishment, attracting provisions of Article
311(2) of the Constitution. The reason is that as
a charge or imputation is made the condition for
passing the order, the court would infer
therefrom that the real intention of the
Government was to punish the government
servant on the basis of that charge or
imputation and not to exercise the power of
compulsory retirement. But mere reference to
the rule, even if it mentions grounds for
compulsory retirement, cannot be regarded as
sufficient for treating the order of compulsory
retirement as an order of punishment. In such a
case, the order can be said to have been passed
in terms of the rule and, therefore, a different
intention cannot be inferred. So also, if the
statement in the order refers only to the
assessment of his work and does not at the
same time cast an aspersion on the conduct or
character of the government servant, then it will
not be proper to hold that the order of
compulsory retirement is in reality an order of
punishment. Whether the statement in the order
is stigmatic or not will have to be judged by
adopting the test of how a reasonable person
would read or understand it."
47. The question came up for consideration
before a Division Bench of this Court in State of
Gujarat v. Umedbhai M. Patel (2001)IILLJ1140SC
wherein Balakrishnan, J., as the learned Chief
Justice then was, summarized the law, thus:
"11. The law relating to compulsory retirement
has now crystallised into definite principles,
which could be broadly summarised thus:
(i) Whenever the services of a public servant are
no longer useful to the general administration,
the officer can be compulsorily retired for the
sake of public interest.
(ii) Ordinarily, the order of compulsory
retirement is not to be treated as a punishment
coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to
chop off dead wood, but the order of compulsory
retirement can be passed after having due
regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential
record shall be taken note of and be given due
weightage in passing such order.
(v) Even uncommunicated entries in the
confidential record can also be taken into
consideration.
(vi) The order of compulsory retirement shall not
be passed as a short cut to avoid departmental
enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite
adverse entries made in the confidential record,
that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be
imposed as a punitive measure."
35. The adverse remarks had been given more than 10 years before
the consideration. Furthermore, despite the adverse remarks which
are relied upon by the respondents, the petitioner was promoted to the
rank of Assistant Commandant and had also satisfactorily completed
his probation on 7th May, 2008 which was barely a few weeks before
the passing of the impugned order. So far as the consideration in 2009
of the petitioner's record for the purposes of Rule 56 (j) is concerned,
we find merit in the submission that the said adverse entries of 1996
were too remote to influence the impugned decision.
36. As noted above, the last punishment against the petitioner was
more than eight years old and he has been promoted in 2006 and
confirmed in the promoted post in 2008. There is nothing adverse in
the ACRs of the petitioner for almost eleven years prior to the passing
of the impugned order. No major punishment has been imposed upon
the petitioner and there is not even a minor punishment for the last
almost more than eight years.
37. The adverse entries in the years 1986, 1996 & 1998 were
certainly too remote to result in the impugned order and could not
have been the basis for adverse action against the petitioner especially
keeping in view the service profile of the petitioner.
38. The comments of the internal screening committee show that
the fact that the petitioner has been promoted and successfully
completed his probation has not even been considered by the
committee. There is nothing at all placed before this court which
would enable this court to hold as has been held by the Supreme Court
in the case of State of U.P. & Ors. Vs. Vijay Kumar Jain (supra),
that the petitioner has outlived his utility or that his compulsory
retirement was necessary to ensure efficiency in service when the
petitioner was deadwood to maintain efficiency in service. There is no
issue at all with regard to the integrity of the petitioner or that his
conduct is unbecoming to public interest or is an obstruction to
efficiency in public service. There is also nothing to show that the
petitioner has outlived his utility in service. No element of public
interest has been pointed out by the respondents as even suggested
either in the consideration by the internal screening committee of the
CISF or by the review committee in the Ministry of Home Affairs which
has simply endorsed the recommendations.
39. It needs no elaboration that the conclusions and orders of the
respondents have to be premised on consideration of all relevant
factors and cannot based on either circumstances or occurrences
which are very remote to the conclusions which are arrived at.
Certainly, the impugned order cannot be premised on adverse entries
which relate to more than 11 years ago while good entries of the
recent past are ignored. Such conduct clearly suggests that an effort
has been made to delve into remote past of an employee to get some
kind of material in order to terminate the services of the employee.
Such an effort was deprecated by the Supreme Court in the
pronouncement reported at (2000) 8 SCC 395 Badrinath Vs. Govt.
of Tamil Nadu & Ors. In this case, the Supreme Court relied on its
earlier judgment in 112 (2004) DLT 150 V.K. Issar Vs. UOI wherein
the court held as follows:-
"4. Too our mind, the approach of the
respondents is totally contrary to the law laid down
in Badrinath v. Government of Tamil Nadu and
Others VII (2000) SLT 572 = (2000) 8 SCC 395.
Relying upon the judgment of three Judges Bench
in Baikuntha Nath Das v. Chief District Medical
Officer, (1992) 2 SCC 299, the Supreme Court held
that "(1) it would not be reasonable and just to
consider adverse entries of remote past and to
ignore good entires of recent past. If entries for a
period of more than 10 years past are taken into
account it would be an act of digging out past to
get some material to make an order against the
employee. (2) It was held that unless an adverse
report is communicated and representation, if any,
made by the employee is considered, it may not be
acted upon to deny the promotion. The same
consideration applies where the adverse entries
are taken into account in retiring an employee
prematurely from service."
40. The petitioner urges that he was a member of the scheduled
caste and had diligently and favourably served the CISF for 27 years.
41. The respondents do not even advert to the 45 cash rewards
earned by the petitioner in his entire service career which also
manifest that the petitioner was rendering satisfactory service in the
counter affidavit.
42. In the instant case, the counter affidavit painstakingly has stated
that the petitioner did not earn any "outstanding" ACR. This position
may be factually correct. However, we find that in all fairness, the
respondents were bound to have also pointed out that out of a total of
44 ACRs, the petitioner earned several `good' and `very good' ACRs
and that only seven out of the 44 ACRs were `average' while two
remote ACRs contained adverse remarks.
43. The instant case in fact manifests the unfortunate stand which
was taken by the authorities to defend and defeat a writ petition. The
respondents were possessed of the entire record of service of a person
who has served under them. We find that instead of taking a fair
stand and placing both good and the bad points in a person's profile
before the court, the respondents have painstakingly extracted all that
is negative in the service record of the petitioner and placed only such
negative information. A completely distorted picture of the profile of
the employee is thereby made out.
44. Such pleadings, in our view, clearly tantamount to an attempt to
deliberately mislead the court. To say the least, the same is not only
unfair but is impropriety of the highest kind. An employer, especially
when it is the State or a statutory authority, is expected to act with
complete candour and is required to place not only the negative points
in the service record of its employee but also all the positive aspects of
the service progression of an employee. The purpose of this exercise
is to enable the court to arrive at a just conclusion. The respondent
cannot merely defend or shield its actions as an employer.
45. In view of the above, the impugned orders which place reliance
on an entry which was more than 11 years before the termination of
the petitioner's service, ignoring his good reports, cash rewards
thereafter or during his service as well his promotions cannot be
sustained. The petitioner has pointed out that 15 of the said cash
rewards were earned by him while serving on deputation with the
police service while 30 were earned when serving in CISF in different
positions.
46. We, accordingly, hold that the impugned orders are based on no
relevant material, arbitrary and are clearly in violation of the well
settled principles noticed hereinabove.
The impugned orders dated 6th October, 2009 as well as the
order dated 21/22nd May, 2009 are hereby set aside and quashed. The
respondents shall forthwith reinstate the petitioner in service with all
consequential benefits.
47. The petitioner shall be entitled to costs of the present litigation
which are assessed at Rs.25,000/- which shall be paid with his salary
immediately after his reinstatement or within six weeks, whichever is
prior.
This writ petition is allowed in the above terms.
GITA MITTAL, J
J.R. MIDHA, J
rd
March 23 , 2011
aa
