Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4784 OF 2007
Punjab State Power Corporation Ltd. & Ors. ... Appellants
Versus
Hari Kishan Verma ...Respondent
J U D G M E N T
Dipak Misra, J.
The singular question that arises for consideration in this
appeal is whether the order passed by the Punjab State Power
Corporation Ltd. [erstwhile, the Punjab State Electricity Board
(PSEB)], the first appellant herein, compulsorily retiring the
respondent on attaining the age of 55 years is in accordance
Signature Not Verified
Digitally signed by
Chetan Kumar
Date: 2015.03.27
18:24:29 IST
Reason:
with Punjab State Electricity Board Service (Premature
Retirement) Regulation 1982 (for short “the Regulation”) is
2
sustainable in law or is it vulnerable being ex facie stigmatic.
2. The factual score as depicted is that the respondent joined
the services of the PSEB as a lineman on 6.2.1969. He was
promoted to the post of Junior Engineer on 4.12.1973 and while
holding the post of Junior Engineer in a disciplinary proceeding
he was censured on 29.2.1988. In the year 1992 another
disciplinary proceeding was initiated against him and he was
visited with the punishment of stoppage of two annual
increments without cumulative effect under Regulation 5(4) of
Punjab State Electricity Board (Punishment & Appeal)
Regulation, 1971. He was also visited with stoppage of two
increments with cumulative effect on 5.8.1993 in another
disciplinary proceeding.
3. As the factual matrix would unroll the respondent attained
the age of 55 years on 19.4.2003, his date of birth being
20.04.1948. A High Empowered Integrity Committee (HEIC) was
set up for screening the case of respondent for his retention in
service beyond the age of 55 years. As per the regulations his
case was considered by HEIC on 17.02.2004 and the committee
after taking note of entire service record, the disciplinary
proceedings initiated against him and the punishment imposed,
3
his inefficiency in service and the confidential reports from
1992-2003, recommended his case for premature retirement and
accordingly an order dated 19.02.2004 was passed by the Chief
Engineer.
4. Being dissatisfied with the aforesaid order the respondent
filed Civil Writ Petition No.12902/2004 in the High Court of
Punjab and Haryana at Chandigarh assailing the same on the
fundamental ground that the order is punitive and stigmatic in
character as it entails penal consequences and, hence, it was
legally non-substantiable. The High Court reproduced the order
of compulsory retirement, placed reliance on the order passed in
Civil Appeal No. 3048 of 2000 titled R.K. Panjetha v. Haryana
1
Vidyut Prasaran Nigam Ltd. & Another and after quoting a
passage from the said order opined that the case of the
respondent is covered by the order passed by this Court,
eventually treated the order to be stigmatic and quashed it.
5. We have heard Ms. Jayshree Anand, learned counsel for
the appellants and Ms. Rekha Palli, learned counsel for the
respondent. It is submitted by the learned counsel for the
appellants that HEIC had perused all relevant records,
mentioned the disciplinary proceedings and the punishment
1 (2002) 10 SCC 590
4
imposed on the officials and appreciating the entire service
record had recommended for passing of an order of compulsory
retirement and there is nothing to suggest that the order is
punitive or stigmatic and the High Court has erroneously placed
reliance on the order passed by this Court in R.K. Panjetha’s
case and set aside the order of compulsory retirement which
really cannot withstand scrutiny. It is her further submission
that when such an order is passed in accordance with
regulations it is purely a simple compulsory retirement on the
basis of assessment after attaining the requisite age by an
employee and in the absence of anything stated in the order, the
High Court could not have treated the same as stained.
6. Ms. Palli, learned counsel appearing for the respondent, in
her turn, would contend that when the order expressly uses
certain kind of language from which it becomes clear that it is
stigmatic and hence, it loses the flavour of compulsory
retirement which is passed under the regulations and, therefore,
the High Court is justified in treating the same as punitive. It is
also argued that despite the imposition of punishment he had
been promoted to the post of Additional Assistant Engineer on
4.11.1999 and hence, his post prior to the said date should be
5
regarded to have been washed off. Additionally, it is canvassed
by her, as one of the punishments has been taken into
consideration wherein the respondent has been exonerated and,
therefore, the order of compulsory retirement is otherwise flawed
or faulted.
7. To appreciate the contending proponements, it is necessary
to reproduce the order of compulsory retirement passed by the
PSEB. It reads as follows:-
“PUNJAB STATE ELECTRICITY BOARD
Office of Chief Engineer (South) Punjab State
Electricity Board, Patiala
Office Order No. 166 Dated 19.02.2004
Whereas Sh. Hari Krishan Verma JE-1 presently
posted under Nabha Division Punjab State Electricity
Board Nabha under Patiala has attained the age of 55
years on 19.04.2003 because his date of birth is
20.04.1948.
Whereas as per Punjab State Electricity Board
service premature regulation the case Sh. Hari
Krishan Verma JE-I was considered in the meeting
held on 17.02.2004 by the HEIC which has been set
up for screening the cases of Sh. Hari Krishan Verma
JE-I for retention’s in service beyond the age of 55
years. The committee took note of disciplinary cases
personal records and his reputation. The reports of
disciplinary cases indicates the Sh. Hari Krishan
Verma JE-I was served with the sheet/SCN, where in
his three annual increments with future effect vide
office order no. 27 dated 11.01.1983 two AGI without
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future effect vide office order no. 151 dated
09.03.1992, two AGI without future effect vide office
order no. 697 dated 05.08.1993, two AGI without
future effect vide office order no. 858 dated
01.10.1999 two times censured vide office order no.
154 dated 29.02.1988, office order no. 566 dated
08.08.2003.
The ACR as well as disciplinary cases clearly
shows that Sh. Hari Krishan Verma JE-I has a poor
record as well as poor performances and inefficient
and not fit for retention in the service in Punjab State
Electricity Board.
HEIC recommended that the official Sh. Hari
Krishan Verma JE-I might be premature retired. The
Chairman of HEIC in its meeting held on 17.02.2004
approved the recommendations.
The matter was further considered by the
competent authority as per instruction circulated by
the Punjab State Electricity Board, took the note of
recommendation of HEIC, service record general
reputation as well as inefficiency of the official Sh.
Hari Krishan Verma JE-I and decided to prematurely
retire Sh. Hari Krishan Verma JE-I from the Punjab
State Electricity Board service w.e.f 19.02.2004
without prejudice to the outcome of the pending
disciplinary cases against him. The necessity for the
personal hearing was not felt necessary because of
his record available was sufficient for this decision.
And as such Sh. Hari Krishan Verma JE-I is
required to be prematurely retired from the service
from the Punjab State Electricity Board w.e.f.
19.02.2004 as per Punjab State Electricity Board
service (Premature) regulation to be read with
amendments issued from time to time.
And whereas it is not feasible in the public
interest to give three month notice in terms of
regulations Punjab State Electricity Board service
7
(Premature retirement) regulation 1982 and it has
been decided by the competent authority to pay three
months pay and allowances in advance in lieu of
notice period.
Accordingly a cheque no. 499574 dated
19.02.2004 amounting to Rs. 62288.00 in favour of
office Sh. Hari Krishan Verma JE-I is hereby sent to
official in lieu of pay and allowances of three months
notice period.
Now therefore, the competent authority in
exercise of powers to order that Sh. Hari Krishan
Verma JE-I is hereby prematurely retired from the
service of board w.e.f. 19.02.2004 in terms of Punjab
State Electricity Board (premature retirement)
regulation to be read with amendments issued from
time to time without prejudice to the outcome of
pending disciplinary cases.
Chief Engineer (South)
Punjab State Electricity Board Patiala,
Endst no. 2025 Dated 19.02.2004
A copy of the above is forwarded to senior Xen
Nabha Div Punjab State Electricity Board Patiala to
relieve Sh. Hari Krishan Verma JE-I w.e.f.
19.02.2004. A cheque no. 499574 dated 19.02.2004
amounting to Rs.62283.00 in lieu of pay and
allowances for three months notice period and office
order no. 166 dated 19.02.2004 be delivered to the
official Sh. Hari Krishan Verma JE-I and dated
acknowledgement duly signed by him on full-scape
paper be sent to this office for record.
Chief Engineer (South)
Punjab State Electricity Board Patiala,
Endst no. 2025 Dated 19.02.2004
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A copy of the above is forwarded to Sh. Hari
Krishan Verma JE-I office of SDO Punjab State
Electricity Board Sub Division for information. He
should treat him self relieved from service w.e.f.
19.02.2004.
Chief Engineer (South)
Punjab State Electricity Board Patiala”
8. As stated earlier the High Court has placed reliance on
R.K. Panjetha’s case. We are disposed to think that first we
must reproduce the paragraph in which the High Court has
stated how the order is stigmatic:-
“On careful consideration of the facts of the case, we
are of the view that the impugned order Annexure P-1
is stigmatic and punitive in nature and therefore, it
deserves to be quashed in the light of the observations
made by the Apex Court in R.K. Panjeta’s case (Supra).
We are thus, satisfied that case of the present
petitioner is squarely covered by the aforesaid
judgment of the Apex Court.”
9. Keeping in view what has been stated in the aforesaid
paragraph, it becomes imperative to refer to the decision in R.K.
Panjetha’s case. In the said case, while passing the order of
compulsory retirement, PSEB took note of the disciplinary
proceedings initiated against the appellant therein, various
punishment imposed and pendency of chargesheet and
thereafter stated thus:-
“The Committee also noted that Charge-sheet No.
9
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
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.”
10. On a close scrutiny of the aforesaid order it is quite clear
that it has a different contour. First, it refers to the chargesheet
pending against the incumbent and second, there is also
reference putting responsibility on him for making excess
payment to the private contractors and also taking excess
measurement through technical subordinates. The allegations
graphically reveal violation of instructions. There can be no
shadow of doubt such an order has been held by a two-Judge
Bench to be stigmatic.
11. Coming to the case at hand, as we find from the order it
has reflected on the order passed in the past, taken note of the
ACRs and opined that the respondent was unfit and accordingly
10
the order of compulsory retirement came to be issued. In this
backdrop the question that has emerged for consideration
whether such an order can be treated as stigmatic. It is well
settled in law that the order of compulsory retirement is not a
punishment. It also does not cast a stigma. But when by any
incorporation or some reference or otherwise some stigma is
attached to the order of compulsory retirement, it would be
treated as an order of punishment, falling in a different
compartment altogether losing its features of order of
compulsory retirement under the Rules or Regulations under
which he is not allowed to continue after attaining a particular
age.
12. Prior to dwelling upon the issue whether the order passed
in this case is stigmatic or not, we think it appropriate to deal
with the contention whether the past entries prior the
conferment of benefit of promotion have lost their significance
and hence, the competent authority could not have relied upon
the same while passing an order of compulsory retirement.
There is no cavil over the fact that the respondent was extended
the benefit of promotion to the higher post. The issue that has
been raised by the learned counsel for the respondent is that
11
after the promotion the earlier adverse entries totally lost their
signification.
13. To appreciate the said submission, we think it appropriate
to refer to certain authorities in the field.
2
14. In State of Orissa v. Ram Chandra Das a three-Judge
Bench has emphatically held that object behind compulsory
retirement is public interest and, therefore, even if an employee
has been subsequently promoted, the previous entries do not
melt into insignificance. To quote:-
“7. … Merely because a promotion has been given even
after adverse entries were made, cannot be a ground
to note that compulsory retirement of the government
servant could not be ordered. The evidence does not
become inadmissible or irrelevant as opined by the
Tribunal. What would be relevant is whether upon
that state of record as a reasonable prudent man
would the Government or competent officer reach that
decision. We find that selfsame material after
promotion may not be taken into consideration only to
deny him further promotion, if any. But that material
undoubtedly would be available to the Government to
consider the overall expediency or necessity to
continue the government servant in service after he
attained the required length of service or qualified
period of service for pension.”
15. The aforesaid dictum has been approved and followed in
3
State of Gujarat v. Umedbhai M. Patel , wherein emphasis has
been laid on the factum that entire service record of the
2 (1996) 5 SCC 331
3 (2001) 3 SCC 314
12
government servant is to be examined. Same principle has also
been followed in another three-Judge Bench decision in Pyare
4
Mohan Lal v. State of Jharkhand and Others . Slightly
recently, a Division Bench in Rajasthan SRTC v. Babulal
5
Jangir , after discussing number of authorities, has held thus:-
“22. It clearly follows from the above that the
clarification given by a two-Judge Bench judgment in
6
Badrinath v. State of Tamil Nadu is not correct and the
observations of this Court in State of Punjab v. Gurdas
7
Singh to the effect that the adverse entries prior to the
promotion or crossing of efficiency bar or picking up
higher rank are not wiped off and can be taken into
account while considering the overall
performance of
the employee when it comes to the consideration of
case of that employee for premature retirement.
23. The principle of law which is clarified and stands
crystallised after the judgment in Pyare Mohan Lal v.
State of Jharkhand is that after the promotion of an
employee the adverse entries prior thereto would have
no relevance and can be treated as wiped off when the
case of the government employee is to be considered
for further promotion. However, this “washed-off
theory” will have no application when the case of an
employee is being assessed to determine whether he is
fit to be retained in service or requires to be given
compulsory retirement. The rationale given is that
since such an assessment is based on “entire service
record”, there is no question of not taking into
consideration the earlier old adverse entries or record
of the old period. We may hasten to add that while
such a record can be taken into consideration, at the
same time, the service record of the immediate past
period will have to be given due credence and
4 (2010) 10 SCC 693
5 (2013) 10 SCC 551
6 (2000) 8 SCC 395
7 (1998) 4 SCC 92
13
weightage. For example, as against some very old
adverse entries where the immediate past record
shows exemplary performance, ignoring such a record
of recent past and acting only on the basis of old
adverse entries, to retire a person will be a clear
example of arbitrary exercise of power. However, if old
record pertains to integrity of a person then that may
be sufficient to justify the order of premature
retirement of the government servant.”
16. In view of the aforesaid statement of law, there can be no
iota of doubt that the entire record can be scrutinised by the
employer to adjudge the justification of continuance of the
employee after reaching a particular age as contemplated in the
Regulations. This being the position of law, e have no hesitation
in holding that the submission of Ms. Rekha Palli is sans
substance.
17. The next issue, which is the core one, whether the order
passed by the employer is stigmatic so as to lose the flavour of
compulsory retirement which does not have the attributes of
punishment. Learned counsel for the appellants would contend
that whatever has been stated in the order, by no stretch of
imagination, can be said that it would constitute ex facie
stigmatic. Per contra, learned counsel for the respondent would
give emphasis on the words “reputation”, “general reputation”,
“inefficiency” and “not fit”. To bolster her submission, she has
14
drawn inspiration from the pronouncement in Jaswantsingh
8
Pratapsingh Jadeja v. Rajkot Municipal Corporation . In the
said case, the appellant, while on probation had got extensions
in respect of probation and he was served a show cause notice to
explain on the alleged misconduct of remaining absent from duty
without leave. After the cause was shown by him, the inquiry
that was initiated against him was not brought to its logical end
and his period of probation was extended and after some time,
he was discharged. This Court reproduced the order of
discharge and after analysing many an aspect, came to hold as
follows:-
“If the satisfaction of the employer rested on the
unsatisfactory performance on the part of the
appellant, the matter might have been different, but in
that case, from the impugned order it is evident that it
was not the unsatisfactory nature and character of his
performance only which was taken into consideration
but series of his acts as well, misconduct on his part
had also been taken into consideration therefor. It is
one thing to say that he was found unsuitable for a job
but it is another thing to say that he was said to have
committed some misconduct.”
Thus, it is limpid that the language employed in the said
case is quite different and hence, the decision is distinguishable.
18. In the present case, on an anxious and careful scrutiny of
the words used in the order, there can be no quarrel over the fact
8 (2007) 10 SCC 71
15
that previous misconduct and the punishment visited to the
respondent have been stated. The decision-making process of
the Committee has been reflected in the order. It includes the
disciplinary proceedings, personal records and the reputation.
The reputation here has insegregable nexus, as is seen, with his
ACRs and poor performance. The use of words like “inefficiency”
and “not fit” cannot be put on a pedestal to confer on them such
status so that they convey the meaning of “stigmatic”. It cannot
be remotely so. On the contrary, the order in R.K. Panjetha
(supra) was ex facie stigmatic. It is worth noting that the learned
Single Judge has drawn a parity solely on the ground that the
relationship between an employer and employee is common and
the employer PSEB has passed the order on two different
occasions in respect of two different employees. Their status is
absolutely irrelevant for the purpose of determination of the
controversy in question. It is the nature of order which will
judge its character, namely, simpliciter or stigmatic. The learned
counsel for the respondent has canvassed with immense
enthusiasm that one of the punishment has been set aside. Be
that as it may, in such a case it will not make any difference. It
cannot be said there is non application of mind. The entire
16
record has been scrutinized, valid punishments have been taken
into consideration and the ACRs have been critically scrutinized.
The order, according to us, dwells totally in a different realm
than the order passed in R.K. Panjetha’s case. The distinction
is obvious and same has been obviously missed by the High
Court, which makes its order fallacious.
19. Resultantly, the appeal is allowed and the order passed by
the High Court in Civil Writ Petition No. 12902/2004 is set aside.
The respondent shall reap all the benefits of compulsory
retirement and be paid all his dues, if not paid, within four
weeks hence. There shall be no order as to costs.
.............................J.
[Dipak Misra]
..........................., J.
[Prafulla C. Pant]
New Delhi
March 27, 2015
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ITEM NO.1A COURT NO.5 SECTION IV
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No.4784 of 2007
PUNJAB STATE POWER CORPN. LTD. Appellant(s)
& ORS.
VERSUS
HARI KISHAN VERMA Respondent(s)
Date : 27/03/2015 This appeal was called on for pronouncement of
Judgment today.
For Appellant(s)
Mr. Kuldip Singh, AOR
For Respondent(s)
Mrs. Rekha Palli, AOR
Hon'ble Mr. Justice Dipak Misra, pronounced the
judgment of the Bench comprising His Lordship and Hon'ble
Mr. Justice Prafulla C. Pant.
The appeal is allowed in terms of the signed
reportable judgment.
(Chetan Kumar)
(H.S. Parasher)
Court Master
Court Master
(Signed reportable judgment is placed on the file)