ESI Rajbir Singh v. State of Haryana & Ors.

directed him to lodge a report and accordingly, FIR was registered. It appears that the petitioner was placed under suspension with the allegation that whole of the liquor was not CIVIL WRIT PETITION NO.15848 of 2010 -3- shown in the recovery memo. Complaint in this regard was received from Anil and for which the preliminary inquiry was ordered against the petitioner. Regular departmental inquiry was also ordered and initiated. The prosecution then examined 24 witnesses and enquiry officer then submitted a report finding Inspector Shafiuddin and ASI Mahender guilty. The petitioner, however, was exonerated. Despite this, the inquiry officer was directed to clarify some points. Thereafter, the disciplinary authority disagreed with the finding and a show cause notice was issued to the petitioner proposing a punishment of dismissal from service. After considering the reply received from the petitioner, he has been awarded punishment of stoppage of two future increments on 7.9.2010. This incident and the factum of registration of a criminal case have been taken into consideration while deciding not to retain the petitioner beyond the completion of 55 years of age. Perusal of the impugned order, in fact, will clearly indicate so. It is mentioned in the impugned order that the services of the petitioner are no longer required as he had a chequered record and a departmental inquiry and a criminal case is pending against him. Mr. R.K. Malik, Senior counsel appearing for the petitioner has made two fold submissions. He would first submit that there is no bad entry in the service record of the petitioner and he has constantly maintained a good service record. Thereafter, the counsel submits that the reason advanced in the show cause notice to direct the compulsory retirement of the petitioner on the ground CIVIL WRIT PETITION NO.15848 of 2010 -4- that criminal case or disciplinary proceedings are pending against him would make the order stigmatic in nature and as such the order can not be sustained. The counsel also makes reference to the instruction regulating the compulsorily retirement or retention of employee beyond 55 years of age. As per the instruction, the premature retirement is not to be construed as a punishment and an order cannot be made in a manner that it becomes stigmatic. Counsel would also point out that as per the instructions annexed with the petition as Annexure P-2, what all is required to be seen is the nature of the report earned by an employee and if he has 50%, 70% or above as good reports in the last 10 years without having any entry of doubtful integrity, then order of compulsorily retirement could not be passed. Concededly, as per the reply, in none of report, integrity of the petitioner has been doubted. The nature of the report also is not in serious dispute. It is conceded in the reply that the petitioner has to his credit 29 entries of good report. The bad report highlighted in the reply only relates to registration of a criminal case referred to above. Whether this could have been taken into consideration, that too validly, would thus be an issue. Mr. Nehra appearing for the State forthrightly conceds that besides pendency of a criminal case and the departmental proceedings, which has lead to the award of punishment, no reasons or cause is available for ordering the compulsorily retirement of the petitioner. CIVIL WRIT PETITION NO.15848 of 2010 -5- In support of his contention, the counsel for the petitioner has drawn my attention to a case of State of Gujarat and another Versus Surya Kant Chunilal Shah, JT 1998(8) SC 326. In this case, Supreme Court after making reference to famous case (Baikuntha Nath Dass & another Versus Chief District Medical Officer, Baripada & another, JT 1992(2) SC 1), has noted the principle, which could be taken into consideration to ascertain whether the Government servant has outlived his utility and thus, is to be compulsorily retired in public interest for maintaining an efficient administration. It is noticed that an objective view of over all performance of the Government servant has to be taken before deciding 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, after he has attained the age of 50 years. As is well understood that the performance of the Government servant is reflected in the ACR entries and one method of discerning the honesty or integrity of the petitioner, is to look to his character roll entries for the whole tenure from the inception to the date on which decision for his compulsorily retirement is taken. As is noticed, purpose of adverse entry is primarily to reflect the performance of the Government servant and this is a reason why such entries are required to be communicated to the Government servant concerned. It can be noticed that virtually there is no adverse entry in the character roll of the petitioner, which could have prompted the Government to take a decision in regard to his performance and to CIVIL WRIT PETITION NO.15848 of 2010 -6- see if he was fit to be retained further in service or his service was to be dispensed with. In Surya Kant Chunnilal Shah‘s case(supra), there was no material to indicate on the basis of which a reasonable opinion could be formed that the petitioner had outlived his utility as a Government servant or that he had lost his efficiency and had become a deadwood. The petitioner in instant case has been compulsorily retired merely because of his involvement in a criminal case and also on account of disciplinary proceedings pending against him. Similar was the case before the Hon’ble Supreme Court in Surya Kant Chunnilal Shah‘s case(supra). It was observed that the involvement of a person in a criminal case does not mean that he is guilty. It is rightly observed that such a person is still to be tried in a court of law and truth has to be found out ultimately by the Court. As held in this case, before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his involvement. No doubt, it is observed that whether mere involvement would constitute relevant material for compulsorily retirement or would depend upon the circumstances of the case, but the facts of criminal case in the instant case are not such that the petitioner could be said to be a dead wood because of his involvement. Even the pendency of the disciplinary proceedings could not have been validly taken into consideration to compulsorily retire the petitioner. It can be noticed that the petitioner was issued CIVIL WRIT PETITION NO.15848 of 2010 -7- show cause notice on 25.8.2010, whereas the punishment was imposed on him on 7.9.2010. The counsel is justified in urging that this punishment has been imposed after the date of show cause notice and as such this ground was not available to direct compulsorily retirement of the petitioner. Obviously the punishment, which was subsequently imposed, could not have been validly viewed by the authority for deciding either to retain or to compulsorily retire the petitioner. It can, thus, be said that no valid material was available with the respondents to consider whether the petitioner has become a deadwood for which he was needed to be compulsorily retired. The reliance on the judgment in the case of R.K. Panjeta Versus Haryana Vidyut Prasaran Nigam Ltd. & another, Civil Appeal No.3048 of 2000, decided on 25.4.2000 (Annexure P-4) is also not without reason. In this case, the Hon’ble Supreme Court has made reference to the reasons, which were taken into consideration to direct compulsorily retirement of the petitioner therein. Since all the allegations pertained to issuance of a charge- sheet or the involvement of the person in criminal case, the Court observed that the compulsorily retirement would indicate that it is stigmatic in character. Though reference in detail to the disciplinary proceedings or the criminal case pending against the petitioner is not made in impugned order Annexure P-3, yet the fact that only reason with the authority is pendency of a criminal case and disciplinary proceedings would make the impugned order to look CIVIL WRIT PETITION NO.15848 of 2010 -8- stigmatic. In view of the above, the impugned show cause notice and resultant compulsorily retirement of the petitioner, which is to take effect from 25.11.2010 can not be sustained and the same is set aside. Needless to mention that in case outcome of the criminal case, which is pending, goes against the petitioner, it would be open for the respondents to take appropriate action in accordance with law against the petitioner. The impugned order can not be sustained and is set aside. The writ petition is, accordingly, allowed. November 09, 2010 monika ( RANJIT SINGH ) JUDGE