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2010 DIGILAW 497 (GUJ)

N. P. Metha v. State of Gujarat through Secretary

2010-10-07

K.M.THAKER, S.J.MUKHOPADHAYA

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JUDGMENT : S.J. Mukhopadhaya, J. This writ petition has been preferred by the petitioner, who was a member of the Gujarat State Judicial Service, against the order of retirement dated 26.10.2009 issued in the public interest by the State under Rule 10(4)(a)(I)&(II) of the Gujarat Civil Services (Pension) Rules, 2002 and Rule 21(1) and (2) of the Gujarat Judicial Services Rules, 2005. Three months' pay and allowances had been paid to him in lieu of the notice. 2. The brief facts of the case are that the petitioner, who initially started his career as a Section Writer on 20.11.1980, was appointed as a Civil Judge (Junior Division) & Judicial Magistrate, First Class on 10.6.1996. In his capacity, he was sent on deputation in the Labour Court and again returned back to the Judicial Service. He was promoted to the post of Civil Judge (Senior Division) & Judicial Magistrate, First Class on 14.2.2005. While he was functioning, he has been made to retire from service on 26.10.2009 in the public interest, as noticed above. 3. The learned counsel appearing on behalf of the petitioner would contend that the order is bad on the following counts : - (i) The order of retirement was issued without affording any hearing to the petitioner in violation of the principles of natural justice. (ii) The public interest has not been reflected in the order. (iii) The order is penal in nature passed without initiation of a departmental inquiry. (iv) The order has been passed though no adverse remark has ever been communicated and no departmental proceeding is pending. (v) The assessment of work of the petitioner by the High Court has consistently been 'very good'. Even for the month of September, 2009, just prior to the impugned order, his assessment of work has been found to be 'very good'. The learned counsel for the petitioner would contend that the petitioner having been assessed 'very good' continuously and on the basis of such character roll, having promoted as Civil Judge (Senior Division) on 14.2.2005, the impugned order cannot be upheld. The order is mala fide, arbitrary as no reasonable person would form such opinion on the basis of existing material. The counsel for the petitioner relied on the decision of the Supreme Court in the case of R.P. Malhotra v. Chief Commissioner of Income-tax, Patiala, reported in AIR 1990 SC 2055 4. Mr. The order is mala fide, arbitrary as no reasonable person would form such opinion on the basis of existing material. The counsel for the petitioner relied on the decision of the Supreme Court in the case of R.P. Malhotra v. Chief Commissioner of Income-tax, Patiala, reported in AIR 1990 SC 2055 4. Mr. JB Pardiwala, learned standing counsel for the High Court referred to the service records of the petitioner, including the character roll. The original records have also been produced. The learned counsel for the High Court would contend that the High Court, taking into consideration the total service record, having formed its opinion, this Court under Article 226 of the Constitution of India would not re-appreciate the remarks for coming to a different conclusion. He relied on the decisions of the Supreme Court in support of his contention. 5. We have heard the counsel for the parties and perused the record. 6. The counsel for the petitioner relied on the decision of the Supreme Court in R.P. Malhotra v. Chief Commissioner of Income-tax, Patiala (supra). In the said case, the officer was compulsorily retired in the public interest. The Supreme Court having noticed the ratings of the officer for the previous years as "average" and "good", held on consideration of the ACR, that from the order of the Screening Committee, it cannot be said that the appellant of the said case had lost utility in service and thereby, decided that the said officer could not have been retired before the age of superannuation. From the aforesaid case, it will be evident that the Supreme Court gave its finding on the basis of the record of the officer, particularly character roll of the previous years. No ratio was laid down by the Supreme Court. The issue as raised in the present case practically stands determined by the Supreme Court in its decision rendered from time to time. 7. In the case of Union of India v. V.P. Sheth, reported in AIR 1994 SC 1261 , the Supreme Court while noticed the requirement of communication of adverse remarks, held that that 'un-communicated adverse remarks' can certainly be considered for exercise of power of compulsory retirement. 7. In the case of Union of India v. V.P. Sheth, reported in AIR 1994 SC 1261 , the Supreme Court while noticed the requirement of communication of adverse remarks, held that that 'un-communicated adverse remarks' can certainly be considered for exercise of power of compulsory retirement. Aforesaid decision was based on earlier decisions of the Supreme Court in Baikuntha Nath Das v. Chief District Medical Officer, Baripada, reported in 1992 (2) SCC 299 and Posts & Telegraphs Board v. CSN Murthy, reported in (1992) 2 SCC 317 . Having noticed the principles laid down, the Supreme Court jotted down the same at one place in the case of Union of India v. V.P. Sheth AIR 1994 SC 1261 (supra), and observed as follows :- "2. ...., this Court evolved the following principles :- (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary " in the sense that no reasonable person would form the requisite opinion on the given material; in short: if it is found to be a perverse order. (iv) The Government (or the Review Committee, as the came may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse, if a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lost their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse, if a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lost their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it un-communicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference." Thus, it will be evident that the order of compulsory retirement is not a punishment; it implies no stigma nor any suggestion of misbehaviour and, therefore, the question of issuing any show cause notice in the matter of retirement in the public interest does not arise. Similarly, un-communicated adverse remarks can be noticed for retiring an officer in the public interest. 8. In the case of Baikuntha Nath Das v. Chief District Medical Officer, Baripada, 1992 Lab IC 945 (supra), the Supreme Court considered the Fundamental Rule 56(j) and Rule corresponding to it and observed that the object and purposes for exercise of such powers are well stated in Union of India v. Col. JN Sinha, reported in 1970 (2) SCC 458 and other decisions referred to by the Supreme Court and held as follows :- "34. The following principles emerge from the above discussion : (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary " in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order. (iv) The Government (or the review committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of an performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a court merely on the showing that while passing it un-communicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference." 9. The aforesaid decisions were reiterated in the case of Nawal Singh v. State of Uttar Pradesh, reported in (2003) 8 SCC 117 From the aforesaid judgment, it will be evident that the principles of natural justice have no place in the context of an order of compulsory retirement, though judicial scrutiny is permissible by the High Court or the Supreme Court. However, in such case, while the High Court would not examine the matter as an appellate Court, it may interfere if it is satisfied that the order is passed (a) mala fide or (b) not based evidence or (c) is arbitrary - in a sense that no reasonable person would form the requisite opinion on the given material. 10. In the present case, the petitioner has taken a plea that in the quarter ending in December, 2002, the assessment by the High Court was "very good" except for two quarters of 2004 and 2005 when it was not assessed. Even recently, in each quarter ending in 2007 or December 2008 and March, 2008, the assessment is "very good", except in one quarter as "good". 11. The High Court has brought on record the 'adverse remarks', as on record, from which the following facts emerge :- No. Period Remarks 1. From 1.1.1999 to 13.6.1999 He is not industries. He rarely handled old matter in order of seniority. Poor assessment of disposals. Rarely disposed of heavy contested matters. He is not studious. 2. From 1.12000 to 31.12.2000 Assessment of disposals is poor for quarter ending December, 2000. 3. From 1.1.1999 to 13.6.1999 He is not industries. He rarely handled old matter in order of seniority. Poor assessment of disposals. Rarely disposed of heavy contested matters. He is not studious. 2. From 1.12000 to 31.12.2000 Assessment of disposals is poor for quarter ending December, 2000. 3. From 1.1.2001 to 10.6.2001 Disposal of heavy contested matters is poor. 4. From 1.1.2002 to 31.12.2002 He has no studious habits and not keeping himself abreast of the case law, statutory law and development of law in general. There is no discussion of law. He does not reach right and just conclusion. He is not regular and punctual. His disposal is poor. He has not delivered a single judgment in the month from January to March, May, June 2002 and only one judgment has been delivered by him in April, 2002. 5. From 1.1.2003 to 31.12.2002 No interest in office work. He has no studious habits and not keeping himself abreast of the case law, statutory law and development of law in general. No discussion of law noticed in his judgments. 6. From 10.9.2005 to 31.12.2005 He is not clear in thought. He is not polite with all. Knowledge of administrative rules is not upto mark. Treatment to members of the bar is inconsistent. He has no sufficient understanding of and grounding in law. He is expected to prove Labour Cases beyond reasonable doubt. Discussion & appreciation : Reasoning less. Language, presentation and precision :- Not precise. He is not punctual and regular. No overruling of the objections raised in course of recording of evidence by him. There is no discussion of law and facts in his judgments/order. 7. From 1.1.2006 to 31.12.2006 No old case was disposed by him. Thus, from the record, it will be evident that since 1999, the petitioner was not found to be industries, was not handling old matters, assessment of disposals was poor, had no studious habits, did not reach right and just conclusion, he was not regular and punctual, etc. Though such adverse remarks were recorded since January, 1999, but he was given promotion on 14.2.2005. Even after such promotion, he had not improved. Though such adverse remarks were recorded since January, 1999, but he was given promotion on 14.2.2005. Even after such promotion, he had not improved. After promotion, he was found to be not polite with all, he had no knowledge of administrative rules, was developing inconsistent treatment with the members of the Bar, was not giving proper reasoning in the judgments, was not making any discussion and appreciation, precision was not precise, he was not punctual and regular, etc. The aforesaid adverse remarks speak in volume about the quality of a Judge, who is not only supposed to have a clarity of thought and ability to write reasoned judgments, but should have the capacity of disposing of adequate cases and keeping good behaviour, etc. 12. It is a settled law that this Court under Article 226 of the Constitution cannot sit in appeal. It can interfere if it is satisfied that the order is passed mala fide or not based on any evidence or is arbitrary in a sense that any reasonable person would not form the requisite opinion on the given material. In the present case, apart from the fact that the performance of the petitioner was poor, we find that the order of retirement has been passed on the basis of record of service, any reasonable person would form only one opinion that the officer is a burden on judiciary and not fit to be retained in service. For the reasons aforesaid, no interference is called. In absence of any merit, the writ petition is dismissed. No costs. Petition dismissed.