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The State of Punjab v. Gurdas Singh

Supreme Court of India · 31 March 1998

Court
Supreme Court of India
Decided
31 March 1998
Bench
Sujata V. Manohar, S.P. Kurdukar, D.P. Wadhwa
Length
8 pages
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PETITIONER:
THE STATE OF PUNJAB
Vs.
RESPONDENT:
GURDAS SINGH
DATE OF JUDGMENT: 31/03/1998
BENCH:
SUJATA V. MANOHAR, S.P. KURDUKAR, D.P. WADHWA

ACT

HEADNOTE

JUDGMENT

With

CIVIL APPEAL NO. 3668 OF 1991

JUDGMENT Wadhwa, J.

These are two cross appeals, both against two separate judgments of Punjab and Haryana High Court arising out of a judgment of the Additional District Judge, Gurdaspur passed in appeal filed by the State of Punjab and also by Gurdas Singh. The judgment of the High Court in the appeal of the State of Punjab is dated January 25, 1991 and that in the appeal of Gurdas Singh, it is dated March 3, 1991. Both the appeals were dismissed by the High Court in limine.

Gurdas Singh, respondent in Civil Appeal No. 2978 of 1991 was recruited as Constable in 1961 in the Punjab Police. In 1976 he was promoted as Asstt. Sub-Inspector and in 1984 as Sub-Inspector. By order dated September 3, 1987 of the Senior Superintendent of Police, passed in pursuance to Rule 3(1) (b) of the Punjab Civil Services (Premature Retirement) Rules, 1975, he was prematurely retired from the service. At that time he was holding substantive rank of Sub-Inspector of Police and had completed 25 years of qualifying service as on February 3, 1986. This order reads as under :-

"office of the Senior

Superintendent of Police, Gurdaspur

ORDER

Whereas you, Shri Gurdas Singh

Sub Inspector of Police No.

1151/Jull of this district, have

completed 25 years qualifying

service on 3.2.1986.

2. And whereas on consideration of

your record I am of the opinion

that it is in public interest to

retire you from service

prematurely.

3. Now, therefore, in pursuance of

Rule 3(1) (b) of the Punjab Civil

Services (Premature Retirement)

Rules, 1975 it is ordered that you

will retire from service with

effect from 3rd September, 1987

afternoon.

4. You are further informed that

you will be entitled to claim a sum

equivalent to the amount of your

pay and allowances at the same

rates on which you are drawing

immediately before the date of

retirement in lieu of three months

notice period.

Sd/-

Sr. Superintendent of Police

Gurdaspur 3.9.87" Gurdas Singh filed appeal under the relevant service rules against the order prematurely retiring him from service but the same was rejected by the Deputy Inspector General of Police, Jalandhar Range, Jalandhar Cantt. by order dated November 18, 1987. The relevant portion of the order in appeal reads as under :-

2. I have considered his

representation alongwith the

premature retirement papers and

also examined his service record.

The representationist came to be

adversely commented upon in his

ACRs for the period from 1.4.78 to

30.9.78, 1.4.79 to 30.9.79,

18.6.84, to 30.9.84, and 18.6.84 to

31.3.95 by different Reporting

Officer for being dishonest and of

shady character. I have examined

the pleas put forth by the

representationist, which are not

convincing and are vague. I am

satisfied that he was rightly

retired prematurely. In view of the

above discussion, I hereby reject

his representation."

Thereafter Gurdas Singh filed a civil suit on February 25, 1988 challenging his premature retirement from the service and for quashing the orders dated September 3, 1987 and that dated November 18, 1987 being illegal and void. The suit was decreed in favour of Gurdas Singh by judgment dated June 14, 1989 of the subordinate Judge, 1st Class, Gurdaspur. The State of Punjab appealed against that judgment and decree. By Judgment dated August 10, 1990 Additional District Judge, Gurdaspur, dismissed the appeal. He, however, held that Gurdas Singh, Plaintiff, has succeeded on ultra-technical point on the failure of the defendants to produce proof of their having conveyed to him two adverse entries. it was, therefore, directed that Gurdas Singh would not get any arrears of pay w.e.f. September 3, 1987 to June 14, 1989 when his suit was decreed by the trial court. Both the State of Punjab and Gurdas Singh filed appeals in the High Court. While the appeal of the State of Punjab was dismissed by the impugned judgment dated January 25, 1991, that filed by Gurdas Singh was dismissed by a judgment dated March 6, 1991. State of Punjab is aggrieved that the order prematurely retiring Gurdas Singh has been upset. Gurdas Singh is aggrieved that he has been denied salary for a certain period.

The grounds on which the order prematurely retiring Gurdas Singh was set aside was that his record of service prior to his promotion to the rank of Sub-Inspector that is earlier to the year 1984 could not been taken into account and that two adverse entries in his confidential dossier record recorded after 1984 were not communicated to him and those could not form basis for his premature retirement. When leave in the Special Leave Petition filed by the State of Punjab was granted on July 19, 1991, this Court recorded as under :-

"The learned counsel for the

petitioners strongly relies on the

decision in Union of India Vs. M.E.

Reddy: 1980(1) SCR 736, while Mr.

Ujagar Singh refers to a later

decision in Brij Mohan Chopra Vs.

State of Punjab: 1987(2) SCR 583.

Special Leave is granted. Let

the appeal be placed for hearing

before a larger bench. During the

pendency of the appeal operation

of the impugned order shall remain

stayed."

Rule 3 of Punjab Civil Services (Premature Retirement) Rules, 1975 under which action was taken against Gurdas Singh and Rules 4 and 5 are as under :-

"3. Premature Retirement - (1)(a)

The appropriate authority shall, if

it is of the opinion that it is in

public interest to do so, have the

absolute right, by giving an

employee prior notice in writing,

to retire that employee on the date

on which he completes twenty-five

years of qualifying service or

attains fifty years of age or on

any date thereafter to be specified

in the notice.

(b) The period of such notice shall

not be less than three months :

Provided that where at least

three months’ notice is not given

or notice for a period less than

three months in given the employees

shall be entitled to claim a sum

equivalent to the amount of his pay

and allowances, at the same rates

at which he was drawing them

immediately before the date of

retirement, for a period of three

months or, as the case may be, for

the period by which such notice

falls short of three months.

(2) Any Government employee may,

after giving at least three months’

previous notice in writing to the

appropriate authority retire from

service on the date on which he

completes twenty five years of

qualifying service or attains fifty

years of age or on any date

thereafter to be specified in the

notice :

Provided that no employee

under suspension shall retire from

service except with the specific

approval of the appropriate

authority.

4. Retiring pension and gratuity -

A retiring person and death-cum-

retirement gratuity shall be

granted to a Government employee

who retires or is required to

retire under rule 3.

5. Overriding effect - The

provisions of these rules shall

have effect notwithstanding any

thing inconsistent therewith

contained in any other rules for

the time being in force."

It will be thus seen that these Rules give absolute right to retire any Government employee on the date on which he completes twenty-five years of qualifying service or attains fifty years of age or as on any date thereafter to be specified in the notice by giving that employee prior notice of three months in writing. This right has to be exercised if in the opinion of the appropriate authority it is in public interest to retire any employee under the Rules.

Mr. Sodhi, learned counsel for the State of Punjab, submitted that primary anxiety of the Government is, in the interest of administrative efficiency, to ensure that dead wood or more precisely the inefficient and the corrupt element should be weeded out from the service and it was with that end in view that Punjab Civil Service (Premature Retirement) Rules, 1975 have been notified on July 28, 1975. He said action to retire Gurdas Singh in the present case has been taken judiciously in order that public interest is really served by prematurely retiring him. Whole of his record of service has been taken into consideration. Both the appropriate authority retiring him and the appellate authority have applied their mind in proper perspective. He said that the issue whether two adverse entries after promotion of Gurdas Singh were communicated to him or not is not very material in view of the law laid down by this Court.

Mr. Ujagar Singh, learned counsel appearing for Gurdas Singh, submitted that it was incumbent on the authorities concerned to communicate to Gurdas Singh any adverse entry in his record of service as required by Rule 13.17 of the Punjab Service Rules. Chapter XIII of the Punjab Service Rules deals with promotion. In the present case we are not concerned with the rules relating to promotion or communication of adverse entries in the confidential records of the police officer. Rule 5 of Punjab Civil Services (Premature Retirement) Rules, 1975 has overriding effect. we have only to see if action has been taken against Gurdas Singh in accordance with Rule 3 of these Rules.

In Union of India vs. M.E. Reddy and Anr. (1980 (1) SCR 736), respondent was compulsorily retired from service by an order made under Rule 16(3) of the All India Services (Death-cum-Retirement) Rules, 1958. This Rule reads as under:-

"16(3) The Central Government,

in consultation with the State

Government, may require a member of

the Service who has completed 30

years of qualifying service or who

has attained the age of 55 years to

retire in the public interest

provided that at least there

months’ previous notice in writing

will be given to the member

concerned." The Court noted that the Rule gave an absolute right to the Government of India and not merely the discretion and, therefore, impliedly it excludes the rules of natural justice. The Court then observed as under :-

"It is now well settled by a long

catena of authorities of this Court

that compulsory retirement after

the employee has put in a

sufficient number of years of

service having qualified for full

pension is neither a punishment nor

a stigma so as to attract the

provisions of Art. 311 (2) of the

Constitution. In fact, after an

employee has served for 25 to 30

years and is retired on full

pensionary benefits, it cannot be

said that he suffers any real

prejudice. The object of the Rule

is to weed out the dead wood in

order to maintain a high standard

of efficiency and initiative in the

State Service. It is not necessary

that a good officer may continue to

be efficient for all times to come.

It may be that there may be some

officers who may possess a better

initiative and higher standard of

efficiency and if given chance the

work of the Government might show

marked improvement. In such a case

compulsory retirement of an officer

who fulfills the conditions of Rule

16 (3) is undoubtedly in public

interest and is not passed by way

of punishment. Similarly, there may

be cases of officers who are

corrupt or of doubtful integrity

and who may be considered fit for

being compulsorily retired in

public interest, since they have

almost reached the fag end of their

career and their retirement would

not cast any aspersion nor does it

entail any civil consequences. Or

course, it may be said that if such

officers were allowed to continue

they would have drawn their salary

until the usual date of retirement.

But this is not an absolute right

which can be claimed by an officer

who has put in 30 years or service

or has attained the age of 50

years. Thus the general impression

which is carried by most of the

employees that compulsory

retirement under these conditions

involves some sort of stigma must

be completely removed because rule

16(3) does nothing of the sort." This court also considered the arguments of respondent that the order was based on material which was non-existent inasmuch as there were no adverse remarks against him and if there were any such remarks in his confidential reports it should have been communicated to him under the Rules. The Court said :-

"This argument, in our opinion,

appears to be based on a serious

misconception. In the first place,

under the various rules on the

subject it is not every adverse

entry or remarks that has to be

communicated to the officer

concerned. The superior officer may

make certain remarks while

assessing the work and conduct of

the subordinate officer based on

his personal supervision or

contact. Some of these remarks may

be purely innocuous, or may be

connected with general reputation

of honesty or integrity that a

particular officer enjoys. It will

indeed be difficult if not

impossible to prove by positive

evidence that a particular officer

is dishonest but those who has had

the opportunity to watch the

performance of the said officer

from close quarters are in a

position to know the nature and

character not only of his

performance but also of the

reputation that he enjoys. The High

Court has also laid great stress on

the fact that as adverse entries

had not been communicated to Reddy,

therefore, the order impugned is

illegal. We find ourselves unable

to agree with the view taken by the

High court" In Brij Mohan Singh Chopra vs. State of Punjab (1987 (2) SCR 583), this Court adopted a somewhat different approach. The judgment in the case of M.E. Reddy was not noticed. In this case the Court held that it would be unjust and contrary to the principles of natural justice to retire prematurely a Government employee on the basis of adverse entries which were either not communicated to him or if communicated, representation made against those entries were not considered and disposed of. This judgment given by Two Judges Bench has been expressly overruled by a Three Judges Bench judgment of this Court in Baikuntha Nath Das and Anr. vs. Chief District Medical Officer, Baripada and Anr. (1992 (2) SCC 299). The question for consideration before this Court in this latter case was whether it was permissible to the Government to order compulsory retirement of a Government servant on the basis of materials which included uncommunicated adverse remarks. This Court considered various judgments on the issue and laid the following principles :-

"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

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.

Interference is permissible only on

the grounds mentioned in (iii)

above." Same view was again affirmed in another Three Judges Bench judgment of this Court in Poss and Telegraphe Board and Anr. vs. C.S.N. Murthy (1992 (2) SCC 317).

In Union of India vs. V.P. Seth (AIR 1994 SC 1261), a decision to retire respondent was taken on his completing fifty years of age and after perusing his record of service. He challenged this order under Section 19 of the Administrative Tribunals Act, 1985 before the Central Administrative Tribunal, Jabalpur Bench. The Tribunal set aside the order of premature retirement on the sole ground that certain adverse remarks made in the Confidential Report of the respondent had not been conveyed to him and yet they were taken into consideration in passing the impugned order. The stand of the Union of India was that the entire record of service of the respondent had been taken into consideration and it was realised that his integrity was suspect and, therefore, decision was taken to compulsorily retire him from service. This Court noticed that it would be clear that on overall assessment of the officer his integrity was found to be suspect and, therefore, it was decided to exercise the power of compulsory retirement. The Tribunal, however, came to the conclusion that as the adverse remarks of 1985-86 and 1986-87 had not been communicated and as the earlier adverse remarks in connection with the integrity of the respondent stood eclipsed by his subsequent promotions, the authorities were not justified in terminating his services by way of compulsory retirement. Relying on two decisions of this Court in Baikund Nath Das and C.S.N. Murthy this Court observed that the position of law has been settled and the order of the Tribunal could not be sustained as the same runs counter to the principles laid down in the said two decisions.

The facts in the present case are quite similar to that in Union of India vs. V.P. Seth. Here also the only ground on which the order prematurely retiring Gurdas Singh was set aside was that two adverse entries after his promotion from the rank of Asstt. Sub-Inspector to sub-Inspector were not communicated to him and earlier adverse entries could not be taken into account because even when those existed Gurdas Singh had earned his promotion. It is not necessary for us to again reiterate the principles where the Court will interfere in the order of premature retirement of an employee as these have been accurately set down by various pronouncements of this Court and particularly in Baikund Nath Das case. Before the decision to retire a Government servant prematurely is taken the authorities are required to consider the whole record of service. Any adverse entry prior to earning of promotion or crossing of efficiency bar or picking up higher rank is not wiped out and can be taken into consideration while considering the overall performance of the employee during whole of his tenure of service whether it is in public interest to retain him in the service. The whole record of service of the employee will include any uncommunicated adverse entries as well.

We are, therefore, of the view that the suit filed by Gurdas Singh had no merit and the issue whether order dated September 3, 1987 of his premature retirement and that dated November 18, 1987 dismissing the appeal as illegal and void was wrongly decided in his favour. We, therefore, allow the appeal filed by the State of Punjab and dismiss the suit filed by Gurdas Singh. In consequence appeal filed by Gurdas Singh is also dismissed. There shall be no order as to costs.

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