C.W.P No. 3954 of 2004 ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
C.W.P No. 3954 of 2004
Date of decision : February 10, 2009
Ram Kishan
...... Petitioner (s)
v.
Dakshin Haryana Bijli Vitran Nigam (Ltd) and others,
...... Respondent(s)
***
CORAM : HON’BLE MR.JUSTICE AJAY TEWARI
***
Present : Mr. V.K.Sibal, Sr. Advocate with
Mr.Ram Kishan, Advocate
for the petitioner.
Mr.Ashish Rawal, Advocate
for Mr.Anupam Gupta, Advocate
for the respondents.
***
1. Whether Reporters of Local Newspapers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
***
AJAY TEWARI, J
The petitioner has challenged the action of compulsorily
retiring him from service, by way of this writ petition.
In September 1990, the petitioner was appointed as Lower
Division Clerk and promoted as Assistant in 1974. In the year 1980, he
was appointed as Law Officer and promoted as Under Secretary on
14.11.2000. By the impugned order dated 19.11.2003, he was compulsorily
retired. As per the document Annexure R-13, the petitioner’s service record
C.W.P No. 3954 of 2004 ::2::
for the last 10 years is as follows :-
S.No. From To Assessment Integrity
1. 1.4.92 12.8.92 Good Sound
13.8.92 31.3.93 Good No reason to doubt
2. 1.4.93 31.3.94 Good No reason to doubt
3. 1.4.94 31.3.95 Satisfactory/Good No complaint.
4. 1.4.95 31.3.96 Good No complaint
5. 1.4.96 31.3.97 Sent to LR & not received back.
6. 1.4.97 31.3.98 Good Nothing heard against
7. 1.4.98 8.6.98 Less than three months - -
9.6.98 28.2.99 Good Known to be honest
8. 1.4.99 22.9.99 Less than three months - -
28.9.99 31.3.00 Very good. Having sound integrity
9. 1.4.2K 31.3.01 Good Honest
10 1.4.01 31.3.02 Very Good Good
11. 1.4.02 31.3.03 - - Doubtful integrity
His is disobedience and dereliction
of duty and many times warned
him to be more careful in the
discharge of his official duty in
future. Above said reason
inefficiency and corruption would
not be tolerated in the Nigam. As
such integrity as good cannot be
ascertained therefore, his integrity
is doubtful and such type of
official burden in the legal cell.
These adverse remarks were
conveyed to the officer & the
comments to the reply is still
awaited from the L.R, HVPNL,
Panchkula."
It is against this backdrop of the service record that the order of
compulsory retirement has been impugned by the petitioner. As seen from
the above, out of 10 reports available, 9 are good/very good, while the last
report is adverse where his integrity has been termed as doubtful. However,
a perusal of the remarks regarding integrity reveals that the integrity has
been termed as doubtful only for the reason that it could not be ascertained
that his integrity was good. The case of the petitioner is that he had
C.W.P No. 3954 of 2004 ::3::
exposed a scandal in the office of his superior i.e the then Legal
Remembrancer and it was for this reason that the said Officer became
inimical towards him and recorded the ACR which led to his compulsory
retirement.
A lot of material has been placed on record by both the parties
in support and against the allegation of enmity having motivated the adverse
report. The parameters for compulsorily retiring an employee have been
settled by various judicial pronouncements.
In Jagdish Singh Raghva vs State of Haryana and others, 1998
(3) RSJ, a Single Bench of this Court held as follows :-
“5. A bare perusal of summary of A.C.R of the
petitioner would clearly reveal that only one confidential
report i.e for the year 1988-89 contained adverse remarks
whereas all his other reports are either good or very
good. The contention of Mrs. Abha Rathore, the learned
Counsel representing the petitioner that neither before
1988-89 nor after 1988-89, there are any adverse remarks
contained in the confidential report for the year 1988-89,
a case of theft regarding which F.I.R was lodged against
the petitioner and unauthorised absence of one day for
which his one increment was stopped. In so far as theft
case is concerned, it is conceded that F.I.R was filed as
untraced. That case, therefore, could not come in way of
the petitioner for visiting him with consequences such as
premature retirement. There is no need at all to give
finding on the allegation of mala fide against respondent
No.3. However, the fact remains that this officer alone
has found the petitioner to be lacking in all aspects. As
mentioned above, against every column in the
confidential report for the year 1988-89, the petitioner
has been described as average or below average. All
other reporting officers did not at all comment adversely
C.W.P No. 3954 of 2004 ::4::
upon work and conduct or any of the qualities in any of
the columns in the reports either before or after the report
of the year 1988-89. The petitioner was pegged down in
all his qualities and the final remarks in his confidential
reports from good to very good became average or below
average and his integrity was also found to be doubtful.
The adverse remarks in the confidential report of the
petitioner, therefore, in view of the facts as are available
do raise a suspicion. Petitioner has been assessed as
Very Good for the year 1989-90 and 1990-91. In fact,
out of five reports i.e for the years 1989-90 to 1993-94
petitioner has been assessed as Very Good in four
reports. Looked into this background, if the contention
of the learned counsel for the petitioner that such adverse
remarks should be supported by facts is examined, it
would appear that in this particular case at least the
Government ought to have come up with reasons with
persuaded respondent No.3 to give adverse remarks
against the petitioner in his confidential report for the
year 1988-89………… ”
6. In a recent decision the Apex Court in State of U.P
vs Yamuna Shankar Mishra and another, JT 1997(4)1,
observed as follows :-
” Before forming an opinion to be adverse the
reporting officers writing confidential should share
the information which is not a part of the record
with the official concerned, have the information
confronted by the officer and then make it part of
the record. This amounts to an opportunity given
to the erring/corrupt officer to correct the errors of
the judgment, conduct, behaviour, integrity or
conduct/corrupt proclivity. If despite giving such
an opportunity, the officer fails to perform the
duty, correct his conduct or improve himself
necessarily the same may be recorded in the
C.W.P No. 3954 of 2004 ::5::
confidential reports and a copy thereof supplied to
the affected officer so that he will have an
opportunity to know the remarks made against
him. If he feels aggrieved, it would be open to him
to have it corrected by appropriate representation
to the higher authorities or any appropriate judicial
forum for redressal. Thereby, honesty, integrity,
good (sic).
8. In view of the discussion made above, this Court is
of the view that the adverse remarks contained in the
confidential report of the petitioner for the year 1988-89
are neither justified nor have been recorded in tune with
the instructions dated December 12, 1985 for the same
are in consonance with law established by the Supreme
Court in the manner referred to above. In fact, the
procedure adopted by respondent No.3 in recording
adverse remarks in the confidential report of the
petitioner for the year 1988-89 are against all settled
norms of law. That being the situation, the adverse
remarks contained in the confidential report of the
petitioner for the year 1988-89 are quashed and inasmuch
as the premature retirement of the petitioner is based
exclusively on the adverse remarks contained in the
confidential remarks for the year 1988-89, order
Annexure P-8 is also likewise quashed.”
Learned counsel for the petitioner has also relied upon a
judgment of the Hon’ble Supreme Court reported as S.T.Ramesh v. State of
Karnataka & Another, JT 2007 (3) SC 532, wherein the Hon’ble Supreme
Court held as follows :-
“38. The confidential report is an important document
as it provides the basic and vital inputs for assessing
the performance of an officer and further
achievements in his career. This Court has held that
C.W.P No. 3954 of 2004 ::6::
the performance appraisal through Crs should be
used as a tool for human resource development and
are not to be used as a fault-finding process but a
developmental one. Except for the impugned adverse
remarks for a short period of about 150 days, the
performance of the appellant has been consistently of
high quality with various achievements and
prestigious postings and meritorious awards from the
President of India. We have already seen that the
appellant has been graded as “very good”, “excellent”
and “outstanding” throughout his career. It is difficult
to appreciate as to how it could become adverse
during the period of 150 days for which the adverse
remarks were made. Furthermore, despite such
adverse remarks, the Government of Karnataka,
considering his merit and ability and outstanding
qualities, has already promoted the appellant as the
Inspector General of Police.
39. Although, the remarks made by the reporting officer
have been questioned by the appellant as if they had been
made by Respondent 2, the Court still has to make an
assessment as to whether the said remarks were merited
by the appellant on account of his consistently good
performance. Even his outburst against Respondent 2 in
his representation appears to be a fallout of such
presumption which was certainly not expected of an
officer of the rank and caliber of the appellant. But, in
our view, the same should not come in the way of an
otherwise unblemished and outstanding career.”
Learned counsel has further relied on a judgment of the Hon’ble
Supreme Court in R.K.Panjetha vs. Haryana Vidyut Prasaran Nigam Ltd and
another, (2002) 10 SCC 590, wherein the Hon’ble Supreme Court has held
C.W.P No. 3954 of 2004 ::7::
as follows :-
“The Committee so constituted perused the case record,
charge-sheets/show-cause notices and punishment(s) to
Shri R.K. Panjetha, Executive Engineer, the details of
which are as under:
(i) Advised to exercise better supervision in future vide
O/O No. 475/Conf.2740 dated 31-12-1997. In the case he
failed to implement checking report on vigilance party
and did not get charge of 5990 units average in the month
of January 1990 due to which these charges were left out
for months together till the replacement of meter.
(ii) He was warned to be careful in future vide O/O No.
132/Conf.3426 dated 20-3-1998 in the case that the
premises of Faridabad Administration Complex (SED
HUDA) A/c No.14/ MT/424 was checked by ADV,
Gurgaon on 27-5-1992 and it was found that the direct
supply was being allowed to the consumer which was
against the instructions of the Board. He has also failed
to make any efforts to prevent the irregularities which
allowed direct supply to the consumer during his tenure
and made no efforts to arrange meter supply.
iii) He was awarded the punishment of warning with a
copy in CR vide O/O No. 88/Conf.16-6/403/Engg. dated
14-9-1990 to reason that he accepted the application of
18 consumers after the expiry of last date earmarked for
regularisation of unauthorised extension in load under
the voluntary disclosure scheme, i.e., 30-6-1988 by
accepting the additional security. Thus, he violated
Board’s instructions with mala fide and ulterior motives.
(iv) He was censured vide O/O No. 144/Conf.2096 dated
28-10-1992 and to downgrade annual QR for the relevant
period for diverting the funds indiscriminately against the
instructions of the Board.
(v) His services were censured vide O/O No.
89/Conf.2481 dated 6-4-1995 as he failed to ensure that
C.W.P No. 3954 of 2004 ::8::
the energy meter of proper capacity was installed at the
consumers’ premises for recording actual consumption of
energy.
(vi) His four increments were stopped vide O/O No.
98/Conf.2732 dated 11-3-1997 without cumulative effect
as there is nothing on record to show that notices for 17
existing connections for disconnection were issued nor is
there proof that these were disconnected. On the other
hand in respect of five connections, a justification to
allow them as such has been given. He did not take any
action to implement the sale Circular No. 1/81 dated 9-1-
1981.
The Committee also noted that Charge-sheet
No.105/Conf.2902 dated 5-9-1997 is pending relating to
the period while he remained posted as Executive
Engineer (OP), Division Bahadurgarh for the reasons that
he has violated the instructions and issued 217 works
orders amounting to Rs. 20,28,243 for maintenance of
work at Bahadurgarh such as dismantlement of
distribution line, re-erection of lines, resagging of
conductor and relaying of service cables. Whereas
private labour was to be engaged only after fully
deploying the departmental labour and in no case the
maintenance was to be entrusted to the contractor labour,
whereas the officer engaged the private labour for the
above works in clear violation of Board’s instructions.
He is also responsible for making the excess payment to
the private contractor amounting to Rs.1606 against 23
works orders for construction works by taking excessive
measurement through technical subordinates.
And found that Shri R.K. Panjetha is unfit to be
allowed extension beyond the age of 50 years.
Accordingly, the appointing authority has carefully
gone through the report of the Committee and on the
basis of recommendations of the Committee come to the
C.W.P No. 3954 of 2004 ::9::
conclusion that the integrity of the officer is doubtful and
it would not be in the interest of HVPNL to keep him in
service.’
In pursuance of above, Shri R.K. Panjetha,
Executive Engineer, Works (OP) Circle, HVPNL,
Faridabad is hereby retired from the service in public
interest with immediate effect. A cheque bearing No.
CC/16- 529068 dated 17-12-1998 drawn on State Bank
of Patiala payable at Faridabad for Rs. 57,330 in lieu of
three months’ notice period in favour of Shri R.K.
Panjetha, Executive Engineer is sent herewith along with
this order.
This issues with the approval of Chairman-cum-
Managing Director, HVPNL, Panchkula.
sd/-
Under-Secretary/S-I
for CE/Admn., HVPNL, Panchkula”
3. This order was challenged by the appellant before the
Punjab & Haryana High Court in a writ petition which
was dismissed by the impugned judgment dated 22-4-
1999.
4. A bare perusal of the order dated 17-12-1998 retiring
the appellant compulsorily would indicate that it is
stigmatic in character. Since the order ex facie is
stigmatic and is punitive, it cannot be sustained. The
appeal is, therefore, allowed, the impugned judgment
passed by the High Court is set aside and the order dated
17-12-1998 retiring the appellant compulsorily from
service is quashed with the direction that the appellant
shall be put back to duty with all consequential benefits.
The appellant shall be entitled to costs, which are
quantified at Rs. 25,000.”
Learned counsel for the petitioner has also relied upon
M.S.Bindra vs Union of India and others, (1998) 7 SCC 310, wherein the
Hon’ble Supreme Court of India held as follows :-
C.W.P No. 3954 of 2004 ::10::
“Want of any material is almost equivalent to the next
situation that from the available materials, no reasonable
man would reach such a conclusion. While evaluating the
materials, the authority should not altogether ignore the
reputation in which the officer was held till recently. The
maxim “nemo firut repente turpissimus” (no one
becomes dishonest all of a sudden) is not unexceptional
but still it is a salutary guideline to judge human conduct,
particularly in the field of administrative law. The
authorities should not keep their eyes totally closed
towards the overall estimation in which the delinquent
officer was held in the recent past by those who were
supervising him earlier. To dunk an officer into the
puddle of “doubtful integrity”, it is not enough that the
doubt fringes on a mere hunch. That doubt should be of
such a nature as would reasonably and consciously be
entertainable by a reasonable man on the given material.
Mere possibility is hardly sufficient to assume that it
would have happened. There must be preponderance of
probability for the reasonable man to entertain doubt
regarding that possibility. Only then there is justification
to ram an officer with the label “doubtful integrity”.
Learned counsel for the respondent has relied upon Baikuntha
Nath Das and Another vs Chief District Medical Officer, Baripada and
another,m (1992) 2 SCC 299 to argue that in that case the Hon’ble Supreme
Court upheld an order of compulsory retirement even where it relied upon
uncommunicated adverse remarks.
In State of Gujarat v. Umedbhai M.Patel, AIR 2001 SC 1109,
the Hon’ble Supreme Court held as follows :-
” The law relating to compulsory retirement has now
crystallized into definite principles, which could be
broadly summarised thus :-
C.W.P No. 3954 of 2004 ::11::
(i) When 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
weighage 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 is 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.”
In Union of India and others vs Lt. Gen Rajendra Singh Kadyan
and Another, (2000)6 SCC 698, the Hon’ble Supreme Court held as
follows :-
“It is a well-known principle of administrative law that
when relevant considerations have been taken note of
and irrelevant aspects have been eschewed from
consideration and that no relevant aspect has been
ignored and the administrative decisions have nexus with
C.W.P No. 3954 of 2004 ::12::
the facts on record, the same cannot be attacked on
merits. Judicial review is permissible only to the extent
of finding whether the process in reaching decision has
been observed correctly and not the decision as such. In
that view of the matter, we think there is no justification
for the High Court to have interfered with the order made
by the Government.”
It is against this background of law that the factual matrix of
this case has to be examined.
As far as the argument of counsel for the petitioner that the
petitioner was a whistle blower is concerned, the same is borne out from the
record. As a result of the complaint, filed by the petitioner, a scam
involving payment for filing of appeals running into lacs of rupees was
unearthed. It was found that appeals were being typed in the office of the
Legal Remembrancer and money was being charged for typing with the help
of fake bills of fake institutions. Although the Legal Remembrancer was
not directly indicted but it is not disputed that he was subsequently
repatriated and an FIR was lodged against his subordinates. In the
circumstances, the assertion that he was inimical towards the petitioner
cannot be lightly discarded. As noticed above, a perusal of the adverse
remarks also makes intriguing reading. The integrity has been held to be
doubtful not on the basis of any positive assertion but on the basis of a
negative assertion that the integrity as good cannot be ascertained. Though
in the written statement lots of detail regarding various negative aspects of
the petitioner’s career have been detailed, yet it has not been denied that
notwithstanding these details, in last 10 years his record has been uniformly
C.W.P No. 3954 of 2004 ::13::good/very good except for the period 1.4.2002 to 31.3.2003 when
admittedly the whole scam surfaced at the instance of the petitioner. An
attempt has also been made to allege that in fact, the petitioner had made the
complaint only as an attempt to pre-empt the adverse remarks made against
him but, considering the fact that the complaint did not turn out to be
unfounded and in view of the previous record of the petitioner, the same
sounds very thin. It has also been asserted that the petitioner was imposed
punishment of stoppage of two increments by order dated 16.7.1997 but
this has been countered by arguing that after the said punishment, the
petitioner was promoted as Under Secretary (Legal) on 14.11.2000. Thus,
in my opinion, this case would be covered by the dictum of law laid down in
Jagdish Singh Raghva’s case (supra), S.T.Ramesh’s case (supra),
R.K.Panjetha’s case (supra) and M.S.Bindra’s case (supra). As far as
Baikuntha Nath Das and another’s case (supra) is concerned, though the
proposition of law advanced therein is binding, yet in my opinion, the
present is a case where the very ACR on the basis of which admittedly the
impugned order of compulsory retirement has been passed, is, to say the
least, controversial. As regards the punishment order of 1997 is concerned,
one of the factors mentioned by the Hon’ble Supreme Court in Umedbhai
M.Patel’s case (supra) was that a promotion tends to wash out an earlier
punishment. Thus, on a conspectus of all the facts, it can be held that
while passing the order of compulsory retirements, irrelevant aspects have
not been eschewed from consideration, as held by the Hon’ble Supreme
Court in Lt. Gen Rajendra Singh Kadyan and another’s case (supra).
Resultantly, this writ petition is allowed, the order dated
19.11.2003 (Annexure P-27) is set aside and the petitioner is ordered to be
C.W.P No. 3954 of 2004 ::14::reinstated into service with all consequential benefits. It is, however,
clarified that the petitioner will not be entitled to wages for the period he
was out of job.
No costs.
( AJAY TEWARI ) February 10, 2009. JUDGE `kk'