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Case Number

C.W.P No. 3954 of 2004

Advocates

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.

Judges

Ajay Tewari, J.

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitioner challenged his compulsory retirement by way of a writ petition. The petitioner was appointed as a Lower Division Clerk in September 1990, promoted as Assistant in 1974, appointed as Law Officer in 1980 and promoted as Under Secretary on 14.11.2000. By an order dated 19.11.2003 (Annexure P-27) he was compulsorily retired.

The petitioner’s Annexure R-13 discloses his last ten years' confidential reports (ACRs): nine reports were assessed as "good" or "very good" while the final report (for 1.4.2002 to 31.3.2003) recorded an adverse remark describing his integrity as "doubtful" on the basis that "integrity as good cannot be ascertained." The petitioner contended that the adverse report resulted from animus of his superior (the then Legal Remembrancer) who became inimical after the petitioner exposed a scam in that office; the petitioner says he was a whistleblower who had unearthed a scam involving payment for filing appeals and fake bills.

The writ petition challenged the compulsory retirement order dated 19.11.2003; the court considered materials placed by both parties and multiple precedents. The court allowed the writ petition, set aside the compulsory retirement order dated 19.11.2003 and ordered reinstatement of the petitioner with all consequential benefits, but clarified that the petitioner would not be entitled to wages for the period he was out of a job. The judgment is dated February 10, 2009, and delivered by AJAY TEWARI, J.

Legal Issues Presented

Whether the order of compulsory retirement dated 19.11.2003, which is based on an adverse confidential report (ACR) describing the petitioner’s integrity as "doubtful", is sustainable.
Whether the adverse ACR was motivated by mala fide/enmity because the petitioner had acted as a whistleblower exposing a scam in the office of the Legal Remembrancer.
Whether the entire service record, including past good/very good ACRs and subsequent promotions, was adequately considered before passing the order of compulsory retirement and whether the order amounts to punitive or stigmatic action that must be quashed.

Arguments of the Parties

Petitioner's Arguments

The compulsory retirement order is based on an adverse confidential report (for 1.4.2002–31.3.2003) in which integrity is described as "doubtful" but the adverse remark is not supported by positive material; integrity was said to be doubtful only because it "could not be ascertained" to be good.
The petitioner had exposed a scam in the office of the Legal Remembrancer (whistleblower); as a consequence the Legal Remembrancer became inimical towards him and recorded the adverse ACR that led to compulsory retirement.
The petitioner pointed out that out of the last ten ACRs, nine were good/very good and that his prior record overwhelmingly favored him.

Respondent's Arguments

The respondents placed a written statement detailing various negative aspects of the petitioner’s career, including a punishment of stoppage of increments by order dated 16.7.1997 and other matters alleged against him.
The respondents relied upon authorities that permit consideration of adverse or even uncommunicated confidential entries and which support compulsory retirement in appropriate cases (authorities were cited to justify the action).
The respondents asserted that the adverse entry and the compulsory retirement were warranted in the public interest, relying upon committee findings and prior judicial decisions (as set out in the record).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jagdish Singh Raghva v. State of Haryana and others, 1998 (3) RSJ	Adverse confidential report containing isolated adverse remarks may raise suspicion where other reports are uniformly good; adverse remarks ought to be supported by reasons and the government should explain why a particular reporting officer recorded adverse remarks.	The court treated this case as instructive and held that the present matter is covered by its dictum — i.e., an isolated adverse report amid consistently good reports raises suspicion and demands explanation.
State of U.P v. Yamuna Shankar Mishra and another, JT 1997(4)1	Before recording an adverse opinion in confidential reports, reporting officers should share adverse information with the officer, confront the officer, and make the information part of the record; the officer must have an opportunity to know and respond to remarks.	The court relied on this principle to underscore that adverse remarks must be recorded in consonance with established instructions and must give the affected officer an opportunity; this informs the court's scrutiny of the ACR procedure in the present case.
S.T Ramesh v. State of Karnataka & Another, JT 2007 (3) SC 532	Confidential reports are important but are meant for developmental appraisal; isolated adverse remarks for a short period should not negate a consistently high-quality performance across a career.	The court invoked this authority to assess the weight of an adverse remark of limited duration against an otherwise consistent record of good/very good ACRs, treating the present case as falling within that line of authority.
R.K. Panjetha v. Haryana Vidyut Prasaran Nigam Ltd. and another, (2002) 10 SCC 590	Describes committee findings and circumstances where integrity was held doubtful and compulsory retirement was imposed; it records that integrity doubts and committee conclusions can find support for compulsory retirement in the public interest.	The court noted this authority and included it among the precedents under which the present case would be considered; the court evaluated the facts vis-à-vis Panjetha but still concluded the present ACR was controversial on the facts.
M.S. Bindra v. Union of India and others, (1998) 7 SCC 310	Want of any material to support an adverse conclusion is almost equivalent to having no material; doubt as to integrity must be reasonable and not rest on a mere hunch—there must be a preponderance of probability to label an officer's integrity "doubtful".	The court applied this principle to find that the adverse remark (that integrity "could not be ascertained") did not amount to the sort of material that would justify branding the officer as of doubtful integrity where his prior record was uniformly good/very good.
Baikuntha Nath Das & Anr. v. Chief District Medical Officer, Baripada & Anr., (1992) 2 SCC 299	Holds that compulsory retirement orders can be sustained even where they rely upon uncommunicated adverse remarks (as a legal proposition).	The court noted that although this proposition is binding, it distinguished the present facts — observing that the ACR underlying the impugned compulsory retirement is controversial — and therefore did not allow that authority to justify the present order.
State Of Gujarat v. Umedbhai M. Patel, AIR 2001 SC 1109	Summarises principles on compulsory retirement, including: (i) it can be imposed when services are no longer useful in public interest; (ii) it is not ordinarily punishment under Article 311; (iii) order should have regard to entire service record; (iv) adverse confidential entries may be given weight; (v) even uncommunicated entries may be considered; (vi) compulsory retirement should not be a shortcut to avoid departmental inquiry; (vii) promotion despite adverse entries is a factor in favour of the officer; (viii) compulsory retirement shall not be imposed as punitive.	The court used these principles as the governing matrix for evaluating whether compulsory retirement was justified in the present case, in particular noting that promotion after punishment and the overall record had to be considered.
Union of India & Others v. Lt. Gen Rajendra Singh Kadyan & Anr., (2000) 6 SCC 698	Administrative decisions withstand judicial review if relevant considerations are taken into account and irrelevant ones are eschewed; judicial review is limited to process and not to substituting the court's view for the decision-maker where the decision has nexus with the facts on record.	The court cited this principle to observe that irrelevant aspects had not been taken into account in the present case and to justify reviewing whether the process adopted in arriving at the compulsory retirement order was correct.

Court's Reasoning and Analysis

The court proceeded by examining the factual matrix and the applicable legal principles as developed in the cited authorities. The court noted the following factual and legal points and applied them as set out below:

Examination of service record: The court observed that out of the last ten ACRs available, nine were assessed as "good" or "very good" while the last (for 1.4.2002–31.3.2003) contained an adverse remark that integrity was "doubtful." The adverse conclusion arose not from a positive finding of misconduct but from the negative formulation that integrity "as good cannot be ascertained."
Whistleblower context and possible motive: The court accepted that the petitioner had made a complaint which led to discovery of a scam involving payment for typing appeals and fake bills; the Legal Remembrancer was not directly indicted but was repatriated and FIRs were lodged against subordinates. Given those events, the court held that the assertion of inimicality by the Legal Remembrancer towards the petitioner could not be lightly discarded.
Assessment of adversarial material and procedural fairness: The court referred to the jurisprudence requiring that adverse entries be supported by material and, where appropriate, that reporting officers confront the officer with adverse information (State of U.P v. Yamuna Shankar Mishra). The court found that the adverse entry in the ACR was, at the least, controversial and not supported by positive material on the record.
Weight of past record and promotions: The court noted that despite some negative particulars placed by respondents (including stoppage of increments in 1997), the petitioner was promoted to Under Secretary (Legal) on 14.11.2000 after those events. The court invoked the principle (Umedbhai M. Patel) that promotion despite earlier adverse entries is a fact in favour of the officer and tends to wash out earlier punishment.
Application of precedent authorities: The court held that the case fell within the scope of the precedents cited by the petitioner (Jagdish Singh Raghva, S.T. Ramesh, R.K. Panjetha, M.S. Bindra), which collectively require convincing support for adverse entries that stigmatize an officer and counsel caution before imposing compulsory retirement based on an isolated or controversial ACR. The court distinguished Baikuntha Nath Das (which permits reliance on uncommunicated entries) on the facts because here the underlying ACR was controversial.
Conclusion on exercise of discretion and legality of the order: Applying the legal standards, the court concluded that the adverse ACR on which the compulsory retirement order was based was controversial and not such as to justify a stigmatic, punitive order of compulsory retirement. The court also observed that irrelevant aspects had not been eschewed from consideration (citing Kadyan), but on balance the material did not justify sustaining the compulsory retirement.

Holding and Implications

Holding: The writ petition is allowed and the order dated 19.11.2003 (Annexure P-27) compulsorily retiring the petitioner is set aside. The petitioner is to be reinstated into service with all consequential benefits.

Direct consequences and limitations:

The petitioner is ordered to be reinstated into service with all consequential benefits.
It is explicitly clarified that the petitioner will not be entitled to wages for the period during which he was out of job.
No costs were awarded (the order records "No costs.").

Broader implications:

The court applied established principles from multiple precedents concerning the weight to be accorded to confidential reports, the requirement that adverse entries be supported by material and recorded in consonance with procedural norms, and the caution against using compulsory retirement as a punitive or stigmatic measure. The opinion does not purport to lay down new law beyond application of those precedents; it resolves the dispute on the particular facts (noting the whistleblower context, the overall good record, the controversial nature of the final ACR and the intervening promotion).

Judge: AJAY TEWARI, J. — Dated: February 10, 2009.

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Ram Kishan Petitioner(S) v. Dakshin Haryana Bijli Vitran Nigam (Ltd) And Others, (S)

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 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 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 v. 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 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 v. 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 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 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 v. Haryana Vidyut Prasaran Nigam Ltd and another, (2002) 10 SCC 590, wherein the Hon'ble Supreme Court has held 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 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 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 v. Union of India and others, (1998) 7 SCC 310, wherein the Hon'ble Supreme Court of India held as follows :-

“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 v. 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 :-

(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 v. 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 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 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 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)

JUDGE

February 10, 2009.

‘kk’

Ram Kishan Petitioner(S) v. Dakshin Haryana Bijli Vitran Nigam (Ltd) And Others, (S)

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ram Kishan Petitioner(S) v. Dakshin Haryana Bijli Vitran Nigam (Ltd) And Others, (S)

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