Delhi High Court
Hc (Gd) Om Prakash vs Central Industrial Security ... on 14 October, 2011
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 14th October, 2011
+ WP(C) No.7471/2011
HC (GD) OM PRAKASH .... Plaintiff
Through: Mr.Anil Mittal, Advocate
versus
CENTRAL INDUSTRIAL SECURITY FORCE ...Respondent
Through: Mr.P.S.Parmar, Advocate with
Mr.Abdus Salam, Asst.Comdt./CISF
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J. (Oral)
1. Exercising power under Rule 56(j) of the Fundamental
Rules read with Rule 48(1)(b) of CCS (Pension) Rules 1972, upon
completion of 30 years service by the petitioner, the
Commandant CISF Unit Korba has passed the impugned order
dated 16.8.2011 retiring the petitioner prematurely with
immediate effect directing that sum equivalent to pay for 3
months shall be paid.
2. Relevant record concerning the impugned decision has
been produced at the first hearing today itself inasmuch as the
Rules of this Court require an advance copy of a writ petition to
be served upon the respondents who have to appear in court at
the first hearing and we are happy to note that the respondents
have been rendering utmost cooperation to the Court by
producing the relevant record on the date of the first hearing.
Since record is produced today and the only issue which needs to
be decided is whether the service record of the petitioner justifies
impugned order being passed, learned counsel concede that the
matter may be disposed of after considering the record.
3. We note the service profile of the petitioner as tabulated
in the record produced, which record was considered by the
competent Authority when decision was taken to retire the
petitioner upon completing 30 years‟ service in exercise of power
under FR 56(j). But before that we note that the petitioner joined
service in CISF in the year 1981. During this period 9 penalties
were inflicted upon the petitioner as under:-
DETAILS OF PUNISHMENT INFLICTED UPON THE PETITIONER
S.No. Year Brief of Charge Punishment awarded
01 1986 Overstayed from "Censure" Awarded on 31.12.1986
joining time for 22 days
U/R-36-02 U/R-37-07
02 1990 OSL for 17 days "Censure" Awarded on 07.09.1990
03 1992 Quarreling man "Reduction of pay by two stages
handling with C/W for one year" awarded on
personnel while on 06.05.1992
duty
U/R-36
04 1993 Illegal gratification "Reduction of pay by minimum
from transporter while stage in pay scale for three years"
on duty awarded by DIG/NZ on 10.09.1993
U/R-36
05 1995 Absent from duty "Censure" Awarded on 04.04.1995
06 1998 Absent from duty "01 day pay fine" Awarded on
30.10.1998
07 1999 Absent from duty fallen "01 day pay fine" Awarded on
03.02.1999
08 2005 Sleeping on duty "04 day pay fine" Awarded on
21.03.2005
09 2008 Overstayed from "02 day pay fine" Awarded on
joining time for 02 days 17.05.2008
4. The ACR gradings of the petitioner are as under:-
ACR GRADINGS OF THE PETITIONER
FROM TO GRADING
01.01.1982 31.12.1982 SATISFACTORY
01.01.1983 31.12.1983 AVERAGE
01.01.1984 31.12.1984 AVERAGE
01.01.1985 31.12.1985 SATISFACTORY
01.01.1986 31.12.1986 SATISFACTORY
01.01.1987 31.12.1987 GOOD
01.01.1988 31.12.1988 AVERAGE
01.01.1989 31.12.1989 AVG./GOOD
01.01.1990 31.12.1990 GOOD
01.01.1991 31.12.1991 GOOD
01.01.1992 31.12.1992 BELOW AVG.
01.01.1993 31.12.1993 AVERAGE
01.01.1994 31.12.1994 GOOD
01.01.1995 31.12.1995 GOOD
01.01.1996 31.12.1996 V.GOOD
01.01.1997 31.12.1997 AVG./GOOD
01.01.1998 31.12.1998 GOOD
01.01.1999 31.12.1999 GOOD
01.01.2000 31.12.2000 AVERAGE
01.01. 2001 31.12.2001 V.GOOD
01.01.2002 31.12.2002 GOOD
01.01.2003 31.12.2003 GOOD
01.01.2004 31.12.2004 GOOD/VG
01.01.2005 31.12.2005 GOOD
01.01.2006 31.12.2006 GOOD
01.01.2007 31.12.2007 GOOD
01.01.2008 31.12.2008 VG/GOOD
01.01.2009 31.12.2009 V.GOOD
01.01.2010 31.12.2010 AVERAGE
5. Premature retirement under Rule 56(j) of the
Fundamental Rules relates to the branch of law which deals with
the weeding out of „dead wood‟ from the system by testing the
integrity, utility and efficacy of the concerned Government
employee on the anvil of public interest. This flows out of the
language of FR 56(j) which says that on issues of integrity, utility
and efficacy the requirement to continue with the employment or
not have to be considered. The dictionary meaning of „dead
wood‟ is „one that is burdensome or superfluous‟. The public
interest to be kept in mind is that it serves the public if efficient
persons discharge duties as public servants and if somebody is
found to be a dead wood, he better be replaced by an efficient
person. Law guarantees to a public servant a minimum
pensionable service and beyond that he must earn the right to
serve by dint of hard work by proving his worth.
6. It was settled by a Constitution Bench of the Supreme
Court, in the decision reported as 1955 (1) SCR 26 Shyam Lal vs.
State of UP, that compulsory retirement or premature retirement
is not a punishment and no stigma is attached as there is no
element of charge or imputation. This is the reason why, even
with respect to un-communicated adverse entries in the ACRs of
a civil servant, it has been held that it is permissible to take them
into account while considering the service record of a
Government servant as per the decision reported as AIR 1992
(SC)1020 Baikuntha Nath Das And Anr vs Chief Distt. Medical
Officer,Baripada & Anr. which decision also recognizes that
although the entire service record has to be kept in view, but
primacy has to be accorded to the service profile preceding up to
last 5 years for the reason it may happen that a person may be
Average in the beginning but with passage of time would become
Very Good and vice-versa.
7. We have for our guidance the decision of the Supreme
Court reported as 1992 SCR (2) 338 P&T Board & Ors. vs. CSN
Murthy, wherein for the last 5 years CSN Murthy had 3 „Goods‟
and 2 „Average‟ ACRs, with the 2 „Average‟ ACRs being in the last
2 years and the Supreme Court observed:- "In our opinion, there
was material which showed that the efficiency of the petitioner
was slackening in the last 2 years of the period under review and
it is, therefore, not possible for us to fault the conclusion of the
department as being mala-fide, perverse, arbitrary or
unreasonable....... It is true that the earlier record of the
respondent was good but if the record showed that the standard
of work of respondent had declined and was not satisfactory, that
was certainly material enabling the department to come to a
conclusion under FR 56(j)".
8. Tested on the anvil aforesaid it assumes importance to
note that the petitioner was promoted as a Head Constable on
14.6.2000 and thus penalties imposed prior to the year 2000
have to be ignored while determining petitioner‟s suitability to be
retained in service. 2 penalties of sleeping on duty and
overstaying leave by 2 days were inflicted in the year 2005 and
2008 and we note that they are minor penalties. The ACR
gradings of the petitioner which have to be considered with
greater focus are the 5 year preceding ACRs. We are conscious
that we have to consider even the prior ACRs. Since the year
1990 till the year 2009 the ACRs of the petitioner were either
„Good‟ or „Very Good‟. The ACR grading „Average‟ for the year
2010 has not been conveyed to the petitioner, in violation of the
law that being adverse it needed to be communicated to the
petitioner. The ACR gradings of the petitioner, do not justify the
decision to treat the petitioner as a dead wood.
9. We allow the writ petition and quash the impugned order
dated 16.8.2011. The petitioner is reinstated in service with all
consequential benefits.
10. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(SUNIL GAUR)
JUDGE
October 14, 2011
rk
