KULDEEP SINGH Vs. THE STATE OF PUNJAB

JUDGEMENT

(1.) PETITIONER , who was Superintending Engineer in the Public Works Department in the State of Punjab, is aggrieved of order dated September 25, 1989, by which tenure of his service was cut short by about 6 1/3 years, by giving him premature retirement under Rule 3(1) of the Punjab Civil Services (Premature Retirement) Rules, 1975 (hereinafter referred, the Rules of 1975). The order aforesaid is challenged on variety of grounds, inclusive of that the same has been passed as a measure of punishment, inasmuch as the Petitioner was under suspension on September 25, 1989, and that no order of his re -instatement had been passed and, therefore, the retirement in the circumstances, as noticed above, was on the basis of the allegation, which was yet pending enquiry/investigation. That being so, the order is styled to be as a measure of penalty. The order is also said to be without jurisdiction under the retirement rules contained in Rule 3.26(c) of the Punjab Civil Services Rules, Volume I, Part I, inasmuch as a person working in the Public Works Department (B and R) in the rank of the Superintending Engineer has a right to continue till the age of superannuation, i.e. 58 years, and that the special rales exclude the officers, who have attained the rank of the Superintending Engineer from premature retirement and that these special rules also exclude the application of the General Premature Retirement Rules, 1975. It is also the case of the Petitioner that the order has been passed in violation of Article 311(2) of the Constitution of India and provisions of the Punjab Civil Service (Punishment and Appeal) Rules, 1975, as also principles of natural justice and that the order is mala fide because it suffers from malice in law, inasmuch as it is based on the material, which could not have been taken into consideration. Before the points as have been noticed above are discussed any -further, it shall be useful to have brief resume of the facts culminating into the present petition. The Petitioner was born on February 19, 1938, and had graduated in Civil Engineering in the year 1959 from the I.I.T. Kharagpur. He was thereafter selected for appointment to the Punjab Service of Engineers in the year 1960 and joined service on March 2, 1960. As per case of the Petitioner he was promoted as Executive Engineer on February 8, 1989 on the basis of his good and satisfactory service record. He was placed in the selection grade as Executive Engineer with effect from January 1, 1978, and was promoted as Superintending Engineer initially in the officiating capacity in the year 1979 and then in the substantive capacity, -vide order dated May 15, 1986. The Petitioner claims to be the senior most Superintending Engineer irrespective of his claim for higher seniority from the persons working as Chief Engineers, which claim is under adjudication in another writ petition filed by him. The case of the Petitioner further is that some vested interests connived to affect him adversely so as to prevent him from being promoted to the rank of the Chief Engineer and the said matter was brought to the notice of the Respondent through repeated representations, but ignoring all the pleadings of the Petitioner, he was placed under suspension, -vide order dated September 20, 1988. The suspension of the Petitioner was ordered due to the sanction accorded by him. to 36 estimates for repairs to various roads, but no charge -sheet relating to this particular allegation was served upon him till he filed the present petition. However, another charge -sheet relating to the sanction of four other estimates was of course served upon the Petitioner along with a copy of statement of the charges and a detailed reply to the aforesaid charges was filed by him on December 7, 1988. Even though a period of more than one year had elapsed, no further action by way of enquiry, as required under the rules, had been initiated against the Petitioner and he continued to be under suspension. When the suspension of the Petitioner continued unabated for a sufficiently long time and no enquiry was instituted against him, the Petitioner was constrained to file a Civil Writ Petition, bearing No. 8857 of 1988, in this Court, which was dismissed in limine by passing the following orders:

(2.) THE order reproduced above would show that the Respondents were at liberty to conduct the enquiry against the Petitioner, but instead of adopting that course, as per pleadings of the Petitioner, another method was deviced by the Respondent to punish him, i.e. by giving him premature retirement. It is in the wake of aforesaid facts and circumstances that the Petitioner pleads that the order of his premature retirement is violative of the Punjab Civil Services (Punishment and Appeal) Rules, 1970, as also Article 311(2) of the Constitution of India and principle of natural justice. Premature retirement during the suspension is said to be vitiated as the same would be punitive in nature. In so far as the service record of the Petitioner is concerned, he pleads that he was promoted as Superintending Engineer in 1979 and subsequently confirmed on that appointment in 1986 and, therefore, the service record of the Petitioner upto the date when he was so promoted and confirmed has necessarily to be treated as good. Any adverse remarks recorded in the confidential reports of the Petitioner prior to that promotion and confirmation are said to be wholly insignificant and cannot be considered for framing opinion to retire him prematurely. After confirmation as Superintending Engineer, -vide order dated May 15, 1986, the next annual confidential report was due for the period 1st April, 1986 to 31st March, 1987. The Petitioner pleads that this report is also to be presumed as good as no adverse remarks relating to that period were ever conveyed to him. With regard to next year, i.e. 1st April. 1987 to 31st March, 1988 as well, the Petitioner pleads that no adverse remarks were conveyed to him and, therefore, his work and conduct has also to be treated as good/satisfactory. The Petitioner, however, received two communications, the first dated September 21, 1983, indicating the period under report from October 15, 1987 to March 31, 1988 and the second dated November 16, 1988, indicating the period under report from July 22, 1987 to March 31, 1983. As per the aforesaid communications, the Petitioner was assessed 'average' and he was also said to have committed financial irregularities and he was also conveyed that there were complaints against him regarding his integrity. The case of the Petitioner is that the adverse remarks contained in both the communications are vague. He also requested the accepting authority, i.e. the Secretary to Government of Punjab, Public Works Department (B and R), to supply him material, facts and figures, on which the aforesaid remarks were based so that he could file a meaningful representation for expunction of the aforesaid remarks. This request was made through various representations, the last two being dated November 28, 1988 and December 25, 1988. The Secretary to Government, however., -vide letter dated January 4, 1989, refused to supply any material, which formed the basis of adverse remarks and further advised the Petitioner to submit his representation. The Petitioner, however, submitted representation without having advantage of scanning through the material that was made the basis for the reports, aforesaid on March 30, 1989, which as per case of the Petitioner, was not decided till such time, he filed the present petition. The positive case of the Petitioner is that except the two reports, given above, no complaint reflecting adversely, the work and conduct of the Petitioner was ever conveyed to him at any time whatsoever. It is on these facts that the Petitioner has challenged the order of his premature retirement on the grounds, which have already been noticed.

(3.) THE Respondents have filed reply to the aforesaid rejoinder as well. The two reports, the period of which was overlapping, is stated to be on account of typographical mistake. In fact, the two reports are for the period from 15th July, 1987 to 31st March, 1988 and 22nd July, 1937 to 31st March, 1988. The material which was considered for premature retirement of the Petitioner is again reiterated to be different from the record/cases mentioned by the Petitioner in Annexure P -13. It is further reiterated that the Petitioner was not given premature retirement on the basis of the charges which were framed against him and regarding which no final decision had been taken at the relevant time. The assertion of the Petitioner that the report for the year 1983 -84 was not conveved to him is not categorically denied for the reason that the same was not available on record. It is, however, pleaded that the report for the year 1983 -84 was adverse for the reasons that in the year 1984 a panel of four Superintending Engineers, including the Petitioner, was sent to the Punjab Mandi Board for appointment on deputation. The file of annual confidential reports of all the four officers, including the Petitioner, were also sent to the Punjab Mandi Board and while examining the panel of officers, the Secretary, Punjab Mandi Board, who was a senior IAS officer had commented that the annual confidential report of the Petitioner for the year 1983 -84 contained adverse remarks regarding his reputation about integrity. The adverse remarks for the year 1984 -85 were conveyed to the Petitioner through registered post on September 24, 1985 and adverse remarks for the period 15th October, 1987 to 31st March, 1988 and 22hd July, 1987 to 31st March, 1988 were also conveyed to him as already mentioned in the written statement. In so far as the right of the Petitioner to inspect the material on the basis of which adverse remarks were passed, it is pleaded that there are no provisions or instructions under which an official/officer is authorised to inspect the record. The action of the Government in rejecting the representations of the Petitioner on the basis oi time limit is also justified on account of instructions contained in Government letter dated 20th October, 1971, relevant portion of which reads as follows: