JUDGMENT
Swatanter Kumar, J.
1. The petitioner was serving as a Head Constable being Head Constable No. 66243089 in the 22nd Battalion of the Border Security Force with Headquarters at Firozpur, Punjab. By that time the petitioner had put in nearly 18 years of service. The competent authority on 11.1.84 issued a show cause notice to the petitioner calling upon him to explain why he should not be retired from service on the basis of the allegations made in the show cause notice. The petitioner submitted his reply to the show cause notice and he stated that there were no adverse remarks in any of his Confidential Report nor any remarks had been communicated to him. While referring to the Departmental Book P.C.R’s Procedure and Instructions 1983 issued by the Personnel Directorate Para 56, the petitioner also raised an objection that these entries were not communicated to him and as such he had no chance to make a representation against these adverse remarks. According to the petitioner, he had an unblemished record of 14 years and Rule 26 of the B.S.F Rules was not applicable to his case. The respondents after considering the reply to the show cause notice vide order dated 5.7.84 directed compulsory retirement of the petitioner from service w.e.f 4.10.84. (Copy of this order is annexed to the petition as Annexure P-3). The petitioner had preferred an appeal against this order in terms of Section 117 of the Border Security Force Act. However, on 9.4.85 the petitioner was informed that the appeal of the petitioner had been rejected. Both these orders have been challenged by the petitioner in this petition under Article 226 of the Constitution of India on the grounds that the order of the Appellate Authority is a non-speaking order. The entire action of the respondents is in violation to the principles of natural justice. No remarks exist on the service record of the petitioner which would justify compulsory retirement of the petitioner from service. It was also alleged that the petitioner was no way unsuitable for retention in the service. Besides that, the order was arbitrary.
2. The respondents have filed a detailed affidavit stating that the writ petition of the petitioner is liable to be dismissed and there were no grounds which would justify quashing of the orders passed by the initial and the Appellate Authority. According to the respondents, the petitioner was awarded seven punishments by the Commandant of the Unit from time to time and as the petitioner had failed to improve despite grant of opportunity, the authorities were compelled to pass the impugned orders. In the rejoinder filed by the petitioner it has been stated that the petitioner was granted no opportunity to know about the bad entries and at the time of appearance of the petitioner before the Deputy Inspector General, the petitioner was compelled to put his signatures on all the entries, as is evident from the fact that they were with the same pen and ink. It was also averred that Rule 26 is not attracted.
3. This writ petition challenging the orders dated 5.7.84 and 9.4.85 was filed by the petitioner in May, 85. The writ petition came up before the Court from time to time and was listed before the Court on 6.2.03 on which date nobody was present on behalf of the petitioner. Again the case was taken up for hearing on 31.5.06 when the Court passed the following orders:
This case has been on the regular list of this Court. But nobody was present on behalf of the petitioner. Today again when the case had been called out for hearing, none is present. We are left with no alternative, but to proceed with the matter in accordance with law.
We have heard the counsel appearing for the respondent.
Order reserved.
4. Thus, we would proceed to record our findings on the basis of the grounds taken up by the petitioner and the records available before the Court. As is evident from the above referred pleadings, the facts are hardly in dispute. According to the respondents, the petitioner during his entire service was awarded seven punishments by the Commandant and he had failed to improve despite opportunity. In Paragraph 7 of the counter it is stated as under:
That the allegation made in paragraph 6 of the writ petition are denied as false. The petitioner was served with a show cause notice to improve himself as he was having 7 bad entries during his service career. In spite giving the petitioner a chance to mend himself and improve his attitude, the petitioner did not act upon the advice and was again awarded 2 punishments. The petitioner was shown his service record every year and his initials were taken thereon. This is done every year in order to give the petitioner an opportunity to know about his good or bad entries in his service record. This opportunity is given to the individuals to know their entries in the service record and accordingly mend themselves in future. It is reiterated that the case of the petitioner was rightly dealt with under Rule 26 of BSF Rules 1969.
5. In the rejoinder the petitioner has not submitted anything except a vague denial of the averments. In fact, in the rejoinder he has nowhere dealt with the contention of the respondents that he was awarded seven punishments in his service career. The plea taken is that he was not communicated the adverse remarks and, therefore, he was not in a position to make any representation against such remarks. This plea of the petitioner can hardly be of any benefit to the petitioner. In the show cause notice which was served by the respondents upon the petitioner, it had been stated as under:
Having gone through your service record, it has been found that you have the following bad entries in your service record:
(a) Under BSF Act 19(d) :WITHOUT SUFFICIENT CAUSE FAILED TO APPEAR AT THE TIME AND PLACE OF APPOINTMENT FOR DUTY ‘SEVERE REPRIMAND’.
(b) UNDER BSF ACT SECTION 30(d) :DISHONESTY MIS APPROPRIATING PROPERTY BELONGING TO THE GOVT.’SEVERE REPRIMAND’.
(c) Under BSF Section 19(a) : ABSENT WITHOUT LEAVE ‘SEVERE REPRIMAND’.
(d) Under BSF Act Section 21-2(b) : DISOBEYING A LAWFUL COMMAND GTIVEN BY HIS SUPERIOR OFFICER ‘SEVERE REPRIMAND’.
(e) Under BSF Section 19(a) : ABSENT WITHOUT LEAVE ‘SEVERE REPRIMAND’.
(F) Inder BSF Act Section 19(b) : WITHOUT SUFFICIENT CAUSE OVERSTAYING LEAVE GRANTED TO HIM ‘REPRIMAND’.
(g) Under BSF Act 21 (2): DISOBEYING A LAWFUL COMMAND GIVEN BY HIS SUPERIOR OFFICER ‘SEVERE REPRIMAND’.
With above report of punishment, I have come to the conclusion that you are a habitual offenders and considered not fit for retaining in the force.
You are directed to forward your reply to the show cause notice by 21 Jan’84 for consideration. If no reply is received by the prescribed dated it will be assumed that you have nothing to say and you will be retired under BSF Rules 26 of 1969 accordingly.
sd/-xxxxxxx
COMMANDANT
22 Battalion BSF
No. 142/Estt/SCN/83/383-84
HQ 22 BN BSF AJNALA (PB)
11 JAN 1984.
6. In the reply to show cause the petitioner had taken up the plea that the adverse entries had not been communicated to him and as such the same could not be taken into consideration in accordance with the instructions issued by the Govt. in the year 1983. But in the same reply the petitioner has also admitted the fact that he was absent for a day or so and had informed the authorities. He further admits that he had suffered the punishment and his pay was also forfeited for a day or two for his absence which amounts to double punishment. If this version of the petitioner is true as stated in the reply to show cause notice, then his plea taken up before the Court can hardly be true. The petitioner also admits that the entries bear his signatures but according to the petitioner these signatures were obtained by the Deputy Inspector General of Police by coercion at the time when he appeared. Firstly, these factual controversies can hardly be determined by the Writ Court in the present proceedings. Secondly, no particulars of the said coercion has been given. It is nowhere stated in the petition when had he appeared before the Deputy Inspector General of Police and what was the occasion for him to appear. Lack of particulars in any case renders the plea taken by the petitioner worthless. Another important facet to this aspect of the case is that in the entire writ petition no such allegation was made by him that the Deputy Inspector General of Police had obtained his signatures as a result of coercion. This has only been stated for the first time in the rejoinder which apparently is an afterthought. Even in the appeal filed by him before the Appellate Authority, it appears no such plea was taken.
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. In the present case the case pleaded by the petitioner in the writ petition even lacks bonafides. As already noticed, the pleas taken in the rejoinder are apparently an afterthought as they were not even remotely indicated either in the departmental appeal filed by the petitioner against the impugned order or even in the writ petition. The service of the petitioner shows that seven different punishments were inflicted upon the petitioner on reprimand and severe reprimand. These included misappropriation in dealing with the property of the Government, disobeying lawful command and unauthorised absence from duty. No such special or equitable circumstances exist in the present case which would persuade the Court to set aside the order of the authorities impugned in the present writ petition. The order of the Appellate Authority may not be reasoned one but certainly is not unjustified. The decision of the authorities can be interfered by the Court normally when the order would suffer from vice of arbitrariness or malafides which is not the case here.
9. For the reasons afore-stated, we find no merit in this writ petition. The same is dismissed, while leaving the parties to bear their own costs.