Delhi High Court has not only Misread the Judgment of Baikuntha Nath Das Case but also Wrongly Applied the Principles Laid Down: SC
CENTRAL INDUSTRIAL SECURITY FORCE
HC (GD) OM PRAKASH
CIVIL APPEAL NO. 5428 OF 2012
The present appeal arises out of an order dated 14.10.2011 passed by the Division Bench of the High Court of Delhi whereby the order of premature retirement passed against the respondent was set aside.
- The respondent, Head Constable Om Prakash was prematurely retired on 16.08.2011 in exercise of the powers conferred under Rule 56(j) of the Fundamental Rules read with Rule 48(1)(b) of CCS (Pension) Rules, 1972 after completion of 30 years of service. The order is to the effect that the Superannuation Review Committee under Rule 48(1)(b) of the Rules found the writ petitioner not fit to continue in service beyond 30 years of qualifying service with immediate effect.
- In the writ petition challenging such order, the High Court set aside the order of premature retirement on the ground that the writ petitioner was promoted as Head Constable on 14.06.2000 and thus penalties imposed prior to the year 2000 have to be ignored while determining suitability of the writ petitioner to be retained in service. The two penalties of sleeping on duty and overstaying leave by two days were inflicted in the year 2005 and 2008 respectively which were minor penalties.
- The Annual Confidential Reports grading of the writ petitioner in the preceding five years have to be considered with greater focus while noticing the fact that even earlier ACR’s had to be taken into consideration. The ACR’s from 1990 till the year 2009 were either good or very good. The ACR for the year 2010 was graded average but the same was not conveyed to the writ petitioner.
It was found that the High Court has completely misdirected itself while setting aside the order of premature retirement of the writ petitioner. The writ petitioner has been awarded a number of punishments prior to his promotion including receiving illegal gratification from a transporter while on duty in the year 1993. There are also allegations of absence from duty and overstaying of leave. After promotion, a punishment of four days fine was imposed on the charge of sleeping on duty and two days fine was imposed for overstaying from joining time. Apart from the said punishments, the writ petitioner has a mixed bag of ACRs such as average, below average, satisfactory good and very good. In the last 5 years, he has been graded average for the period 01.01.2010 to 31.12.2010.
After the judgment in Baikuntha Nath Das, a three Judge Bench in a judgment reported as Posts and Telegraphs Board and Others v. C.S.N. Murthy 6 held that the courts would not interfere with the exercise of the power of compulsory retirement if arrived at bonafidely and on the basis of material available on record.
Hon’ble Supreme Court held that the High Court has not only misread the judgment of this Court in Baikuntha Nath Das but wrongly applied the principles laid down therein. The adverse remarks can be taken into consideration as mentioned in the number of judgments mentioned above. There is also a factual error in the order of the High Court that there are no adverse remarks and that the ACRs for the year 1990 till the year 2009 were either good or very good. In fact, the summary of ACRs as reproduced by the High Court itself shows average, satisfactory and in fact below average reports as well.
Therefore, the order of the High Court setting aside the order of premature retirement is clearly unsustainable and is set aside.
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