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Madhya Pradesh High Court · body

2003 DIGILAW 647 (MP)

Arun Kumar Pandey v. State of M. P.

2003-05-02

S.P.KHARE

body2003
Judgment ( 1. ) THIS is a writ petition under Articles 226 and 227 of the Constitution of India challenging the order dated 7-12-2001 (Annexure P-14) of respondent No. 1 State of Madhya Pradesh by which the petitioner has been compulsorily retired from Higher Judicial Service on the recommendation of the High Court on completion of 20 years of qualifying service under Rule 42 (1) (b) of the M. P. Civil Services (Pension) Rules, 1976 and other enabling rules. ( 2. ) IT is not in dispute that the petitioner was appointed as Civil Judge, Class-II on 6-11-1981. He was confirmed and promoted in the hierarchy of judicial service from one tier to other though his case was deferred on each occasion once or twice. There were adverse entries in his annual confidential reports from the year 1995-96. He was graded e (poor) for the year ending 31-3-1996 by the Portfolio Judge (Judge of the High Court) and Honble the Chief Justice. In the year 1996-97 the District Judge made adverse entry regarding the quality of his work and disposal. He was graded d (average) in the ACR for the year ending 31-3-1998. He was advised to improve his disposal. The petitioner was, however, confirmed on the post of Additional District Judge by order dated 13-8-1998. In the confidential report for the year ending 31-3-1999 the remarks of the Portfolio Judge and Honble the Chief Justice in respect of the petitioner are : "he is a liquor-addict and his conduct and integrity are not free from doubt. He deserves to be categorised in Grade e. " These adverse remarks were communicated to the petitioner and his representation for expunging these remarks was rejected. In the report dated 9-7-2001 of the District Judge (Vigilance) there were adverse comments regarding the judicial work of the petitioner. That report is Annexure P-11. In the Full Court meeting held on 3-11-2001 it was resolved after considering the entire service record of the petitioner that he should be compulsorily retired and in pursuance of this recommendation the impugned order was passed by the State Government. ( 3. ) THE petitioners case is that the adverse entries in his confidential reports are vague and cryptic and do not disclose the material on which these are based and, therefore, these could not be relied upon for his compulsory retirement. ( 3. ) THE petitioners case is that the adverse entries in his confidential reports are vague and cryptic and do not disclose the material on which these are based and, therefore, these could not be relied upon for his compulsory retirement. The remarks regarding his judicial work are said to be of routine nature. The petitioner has denied that he is liquor addict. It is stated that after the confirmation of the petitioner by the order dated 13-8-1998 the earlier adverse remarks lost their sting and could not be looked into for his compulsory retirement. The remarks in the ACR of the year 1998-99 are said to be on account of "personal bias". The impugned order is said to be arbitrary and based on collateral grounds. It is further said that there was no definite material for the resolution of the High Court and there was no objective appraisal of his case. It is also said that it is really not in "public interest". It is also stated that the impugned order amounts to removal of the petitioner from service and it could not be passed without holding a departmental inquiry and giving the petitioner an opportunity of being heard. It is said to be violative of Article 311 (2) of the Constitution. ( 4. ) THE case of the respondents is that the adverse entries in the confidential reports of the petitioner are not vague. They are based on his conduct and the quality of his judicial work. It is pointed out that the entire service record of the petitioner was assessed and then a decision was taken in the Full Court meeting to retire him compulsorily. It was in public interest. The grading e in the two years, as mentioned above, was the main ground on which the impugned order is based. His earlier record was also not good as his case was deferred several times when the question of his confirmation and promotion came up for consideration before the Full Court meeting. Further continuance of the petitioner in judicial service was not desirable. ( 5. ) THE learned Counsel for both the sides have been heard. His earlier record was also not good as his case was deferred several times when the question of his confirmation and promotion came up for consideration before the Full Court meeting. Further continuance of the petitioner in judicial service was not desirable. ( 5. ) THE learned Counsel for both the sides have been heard. The thrust of the argument of the learned Counsel for the petitioner is that (a) the adverse remarks are vague and do not disclose the material on which these are based and after confirmation of the petitioner on the post of Additional District Judge the earlier remarks must be held to have been wiped out or at least their rigour was softened; and (b) the remarks about the petitioner as being "liquor addict" and the adverse remarks in the inquiry report of the District Judge (Vigilance) cast a stigma on him and the impugned order becomes punitive being founded on misconduct and, therefore, this order violates the constitutional protection afforded by Article 311 (2) of the Constitution. These are the two points which arise for determination. ( 6. ) POINT (a) : Rule 42 (1) (b) of the M. P. Civil Services (Pension) Rules, 1976, as amended, provides : "the appointing authority may in the public interest require a Government servant to retire from service at any time after he has completed 20 years qualifying service, with the approval of the Stale Government by giving him three months notice in Form 29 : Provided that such Government servant may be retired forthwith and on such retirement the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing then immediately before his retirement or, as the case may be, for the period by which such notice falls short of three months. Similarly F. R. 56 (j) of the Fundamental Rules provides that notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowances in lieu of such notice,-- (i) if he is, in Group a or Group b service or post in a substantive, quasi-permanent or temporary capacity and had entered Government service before attaining the age of 35 years, after he has attained the age of 50 years. ( 7. ) THE decision to retire an officer or an employee compulsorily under or akin to the rules mentioned above must be arrived at in bona fide exercise of the power in public interest. It should not be arbitrary or malafide. The object of the rule is to "chop off the dead wood" or to bid farewell to inefficient or whose integrity is doubtful. An order of compulsory retirement under such a statutory rule is not punitive. It does not carry any stigma. It is passed after considering the relevant material and the entire service record. More importance is attached to the latest confidential reports or other record. The adverse remarks prior to promotion or confirmation do not become entirely irrelevant though the importance to be attached to such remarks depends upon the facts of each case. There should be an overall assessment or evaluation of the whole record. ( 8. ) IN State of Punjab v. Gurdas Singh, AIR 1998 SC 1661 , it has been held by the Supreme Court that 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. The whole record of service of the employee will include any uncommunicated adverse entries as well. In Bishwanath Prasad Singh v. State of Bihar, (2001) 2 SCC 305 , it has been reiterated that there are service rules, such as F. R. 56 (j) of the Fundamental Rules, which confer on the Government or the appropriate authority, an absolute (but not arbitrary) right to retire a Government servant on his attaining a particular age or on his having completed a certain number of years of service on formation of an opinion that in public interest it is necessary to compulsorily retire a Government servant. In that case, it is neither a punishment nor a penalty with loss of retiral benefits. More appropriately, it is like premature retirement. It does not cast any stigma. The Government servant shall be entitled to the pension actually earned and other retiral benefits. So long as the opinion forming basis of the order for compulsory retirement in public interest is formed bona fide, the opinion cannot be ordinarily interfered with by a judicial forum, such an order may be subjected to judicial review on very limited grounds such as the order being malafide, based on no material or on collateral grounds or having been passed by an authority not competent to do so. The object of such compulsory retirement is not to punish or penalise the Government servant but to weed out the worthless who have lost their utility for the administration by their insensitive, unintelligent or dubious conduct impeding the flow of administration or promoting stagnation. The country needs speed, sensitivity, probity, non-irritative public relation and enthusiastic creativity which can be achieved by eliminating the dead wood, the paper logged and callous. ( 9. ) AGAIN in State of Gujarat v. Umedbhai M. Patel, AIR 2001 SC 1109 , it is stated that the law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus :-- (i) Whenever the service of a pubic 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 weightage 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 was 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. " ( 10. ) NOW the facts of the present case are to be examined in light of the legal position mentioned above. As stated earlier the confidential report of the petitioner for the year ending 31-3-1999 is very bad. According to this report the petitioner is liquor addict and his conduct and integrity are not free from doubt. He was graded e. Similarly in the year ending 31-3-1996 also he was categorised as e. In 1996-97 he was graded d. Thus during these three years he was found either poor or average. It is argued on behalf of the petitioner that these remarks are vague and are not based on any material and therefore, these have no relevance. It is submitted that the petitioner could not be liquor addict-over night when there was no such remark in the earlier years. These arguments are of no substance. The remarks given by the Portfolio Judge and the Chief Justice have their own weight. They keep a watch on the subordinate judicial officers and it cannot be said that their remarks are not based on adequate material. It is not possible to accept the plea that they have any personal bias or malice against any subordinate Judge. The petitioner has taken such a plea in his petition in order to get over his predicament. The record of the earlier years of the petitioner is also not very satisfactory. The question of his confirmation or promotion was deferred several times. It is true that he was confirmed as Additional District Judge on 13-8-1998 but the subsequent confidential report is very damaging. The record of the earlier years of the petitioner is also not very satisfactory. The question of his confirmation or promotion was deferred several times. It is true that he was confirmed as Additional District Judge on 13-8-1998 but the subsequent confidential report is very damaging. Even the earlier adverse reports are not completely wiped out. They are on record and can be considered while making an overall assessment for arriving at the decision whether the petitioner is fit to be retained in service. A judicial officer whose work has been found to be poor twice, whose integrity is doubted and who has been found liquor addict cannot be permitted to occupy the seat of a Judge as the people coming to him for seeking justice would have no confidence in him. The decision to retire him compulsorily must be held to have been taken in bona fide exercise of the statutory power and it is in public interest. ( 11. ) POINT (b) : It is contended on behalf of the petitioner that the impugned order is punitive as it is founded on the allegation of misconduct, that is, of being liquor-addict and it was necessary to hold a departmental enquiry on that ground in which the petitioner could get an opportunity to establish that the allegation is false and he is not a liquor addict. Reliance is placed on the Constitution Bench decision of the Supreme Court in Samsher Singh v. State of Punjab, AIR 1974 SC 2192 . That was the case of discharge of a probationer and the order on the facts of the case was held to be founded on misconduct. The principle which was laid down is that no abstract proposition can be laid down that where the services of a probationer are terminated it can never amount to a punishment. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperament or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperament or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal or removal on an inquiry. But in those cases the authority may not hold an inquiry and may simply discharge the probationer with a view to giving him a chance to make good in other walks of life without a stigma at the time of termination of probation. If, on the other hand, the probationer is faced with an enquiry on charges of misconduct or inefficiency or corruption, and if his services are terminated without following the provisions of Article 311 (2) he can claim protection. The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of punishment. If the facts and circumstances of the case indicate that the substance of the order is that the termination is by way of punishment then a probationer is entitled to the protection of Article 311. The substance of the order and not the form would be decisive. ( 12. ) IN the present case the impugned order by which the petitioner has been compulsorily retired does not cast on the face of it any stigma on him. It is not founded on any misconduct. There has been an overall assessment of his work and conduct discernible from his annual confidential report and a decision has been taken that his continuance in service is not desirable. The adverse entries are the basis of the decision and the statutory rules permit compulsory retirement of an officer who is considered unworthy of the post held by him. The order cannot be said to be punitive. In view of the decisions of the Supreme Court cited above it cannot be held that the impugned order is stigmatic. There was no necessity to hold a departmental inquiry. The order cannot be said to be punitive. In view of the decisions of the Supreme Court cited above it cannot be held that the impugned order is stigmatic. There was no necessity to hold a departmental inquiry. The inquiry by the District Judge (Vigilance) is a routine inspection which he is required to carry out and that was not with a view to find out whether the petitioner is guilty of any specific misconduct. There were two powers in the armoury of the employer and if one which does not carry any stigma has been exercised that is more beneficial to the petitioner as he gets the retiral benefits. It cannot be argued that the employer must resort to the other weapon which is more lethal, of holding a departmental inquiry on charges of misconduct and then pass the punitive order. The choice is with the employer. The exercise of the former power conferred by the statutory rule cannot on the facts of the case be said to be malafide or arbitrary. It was bona fide and in public interest. Recently the entire case law on the point whether the order is stigmatic or not has been considered by the Supreme Court in Pavanendra Narayan Verma v. SGPGI of Medical Sciences, (2002) 1 SCC 520 , where it has been observed : "courts continue to struggle with semantically indistinguishable concepts like "motive" and "foundation"; and terminations founded on a probationers misconduct have been held to be illegal while terminations motivated by the probationers misconduct have been upheld. The decisions are legion and it is an impossible task to find a clear path through the jungle of precedents". (Para 19 ). Then in Para 21 the legal position is clarified as: "one of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry, (b) into allegations involving moral turpitude or misconduct which, (c) culminated in a finding of guilt. If all three factors arc present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld. " In the light of this decision the impugned order of compulsory retirement cannot be held to be stigmatic.