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2011 DIGILAW 44 (RAJ)

S. N. Derashri v. State of Rajasthan

2011-01-06

ARUN MISHRA, PRAKASH TATIA

body2011
JUDGMENT Hon'ble MISHRA, CJ.—Heard learned counsel for the parties. 2. The petitioner has filed this writ petition assailing the order of compulsory retirement passed by the High Court retiring the petitioner compulsorily from service. The petitioner was holding the post of Additional District and Sessions Judge. He was a direct recruit appointed vide order dated 20.4.1998 on a probation period of two years. He was posted as District and Sessions Judge on 30.8.2002. He also held the post of Presiding Officer – Special Judge, Sessions Court, ACD Cases, Kota. While he was holding the post of Special Judge, Sessions Court, ACD Cases, Kota, he was placed under suspension vide order dated 31.5.2003 and a departmental enquiry was contemplated against him. Departmental enquiry was initiated into the allegation of accepting illegal gratification of Rs.15 lakhs from the accused Anandi Lal who was charged with the offence under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 3. Yet another memorandum of charge-sheet was served on 10.3.2004 under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 of illegally granting bail to accused Pappu in connection with the offence under Sections 147, 148, 149, 302, 323 and 341 IPC and thereby flouting the order passed by the District and Sessions Judge, Dholpur and also of the High Court. 4. The enquiry officer recorded statements of seven witnesses. No evidence of illegal gratification could be adduced. After revoking the suspension, his compulsory retirement was ordered. On the one hand, the suspension was revoked and enquiry was not continued, on the other hand, he was compulsorily retired on 13.7.2004 in public interest. 5. It is contended that the order of compulsory retirement has been passed by way of penalty. He was promoted as District & Sessions Judge in August, 2002. There was no adverse material available against the petitioner so as to order his compulsory retirement. The enquiry ought to have been taken to its logical conclusion. Cancellation of bail of the accused was moved before the High Court, which petition was rejected. There was no adverse entry in the ACR communicated to the petitioner. The order has been passed as a camouflage for the order of penalty. Only those entries could have been considered which were duly communicated. During the pendency of the enquiry, he could not have been compulsorily retired. 6. There was no adverse entry in the ACR communicated to the petitioner. The order has been passed as a camouflage for the order of penalty. Only those entries could have been considered which were duly communicated. During the pendency of the enquiry, he could not have been compulsorily retired. 6. In the return filed by the respondent no.2, High Court of Rajasthan, it is contended that though the petitioner was confirmed in the year 2000, he was also found fit to be posted as District & Sessions Judge in the year 2002, he was awaiting posting order. Then enquiry was initiated against him. The overall performance of the petitioner came to be considered by a duly constituted committee and considering the service record, the petitioner was not found fit to be continued in service and his compulsory retirement was ordered in public interest. As the compulsory retirement has been ordered, suspension was revoked and the enquiries were dropped. The compulsory retirement was ordered independent of the enquiries. The service record was scrutinised and there was sufficient material to order his compulsory retirement. His integrity was found to be doubtful in two ACRs and the quality of judgments was not upto the mark. He was not enjoying good reputation. He was found to be below average officer and his dealing was not fair and impartial with the public and the bar. The overall disposal figures of work performance and the service record were considered including reputation regarding integrity, behaviour with the public and bar, ACRs etc. before passing the order of compulsory retirement and un-communicated entry can also be taken into consideration in the matter of compulsory retirement. 7. Shri Joshi, learned counsel appearing on behalf of the petitioner, has submitted that the order of compulsory retirement was a camouflage for penalty. The remarks as to doubtful integrity were not based on any material. When departmental enquiries have been initiated and evidence has been recorded, the same has to be taken to its logical conclusion. When the petitioner was found fit for confirmation and being posted as District & Sessions Judge, obviously, his service record was good. All of sudden in the year 2002, his record became bad. Thus, the order of compulsory retirement deserves to be quashed. Shri Joshi also relied upon various decision, to be referred lately. 8. When the petitioner was found fit for confirmation and being posted as District & Sessions Judge, obviously, his service record was good. All of sudden in the year 2002, his record became bad. Thus, the order of compulsory retirement deserves to be quashed. Shri Joshi also relied upon various decision, to be referred lately. 8. Shri Vinit Mathur, learned counsel appearing on behalf of the respondent no.2, has supported the order of compulsory retirement. He has submitted that the petitioner was a direct recruit and in a short span of time of about 6 years of his inductment as direct recruit in Higher Judicial services, two of the entries were of doubtful integrity. One such entry is enough for ordering compulsory retirement. This Court cannot sit in appeal on the decision of compulsory retirement taken by the respondent no.2. There was enough material to order compulsory retirement. It was not desirable to continue the petitioner in judicial service. Independent of departmental enquiries, the decision has been taken on the basis of the material which was available, to order compulsory retirement. Even in the departmental enquiries, the charge levelled was of accepting illegal gratification of Rs.15 lakhs from the accused charged for offence under Prevention of Corruption Act. In other case, there was serious charge of flouting the order passed by the District & Sessions Judge, Dholpur and by the High Court while granting bail. Thus, the functioning of the petitioner was not conducive in public interest and judicial decorum. He has also referred to various decisions. 9. The first question for consideration is whether the order of compulsory retirement has been passed as a camouflage for order of punishment. When we consider the service record of the petitioner, we find that from 1998 upto 2001, he was rated as good or very good officer. However, in the ACR of 2001 itself, it was mentioned that looking to the quality of the judgment and his overall performance, the petitioner was to be rated as an average officer, was the remark made by the Inspecting Judge. For the period from 1.1.2002 to 3.5.2002, it was mentioned that the quality of judgment is not upto the mark and his reputation for honesty is not good. Therefore, the petitioner was rated as below average officer by the inspecting judge. For the period from 1.1.2002 to 3.5.2002, it was mentioned that the quality of judgment is not upto the mark and his reputation for honesty is not good. Therefore, the petitioner was rated as below average officer by the inspecting judge. For the period from 6.5.2002 to 8.9.2002, it was mentioned in the column of integrity that he does not enjoy good reputation. He was again ranked as below average officer considering his writing of judgments and he was rated overall as an average officer. There was adverse remark made against the petitioner in SB Civil Revision Petition No.609/2000 in the matter of Civil Suit No.5/2000 decided on 9.1.2001 by this Court to the following effect :- “Having gone through the order passed in the aforementioned suit, I am of the opinion, that this Judicial Officer either is not very serious about his work or he does not know or try to know the law. It is a matter of grant of leave to defend the suit to the defendant in the summary suit. The Judicial Officer in case, would have read the relevant provisions and the case law on the subject matter would not have adopted this course. He passed this order in a way to please both the parties rather than to decide the matter in accordance with law. He has not even referred the principles which are to be followed in such matters while deciding the applications filed by the defendants for grant of leave to defend the suit. The order passed by this Officer is below average and further gives out that he does not care to read the provisions and the case law on the subject or he does not known the basic principles under order 37 of CPC and the case law. Either way it is very serious for the Judicial Officer of this rank and detrimental to this institution.” 10. For 6.9.2002 to 31.12.2002, his integrity was again recorded not beyond doubt. He was also found to be an average officer besides being of doubtful integrity. For the year 2003 also, his integrity was mentioned to be doubtful by the Administrative Judge. 11. The first departmental enquiry was initiated against the petitioner on 26.6.2003 of accepting illegal gratification of Rs.15 lakhs on due consideration of adverse ACRs as he was found to be of doubtful integrity, his compulsory retirement was ordered. For the year 2003 also, his integrity was mentioned to be doubtful by the Administrative Judge. 11. The first departmental enquiry was initiated against the petitioner on 26.6.2003 of accepting illegal gratification of Rs.15 lakhs on due consideration of adverse ACRs as he was found to be of doubtful integrity, his compulsory retirement was ordered. He was not found suitable for continuation in service. Second charge-sheet was served on 2.3.2004. But prior to that, there were adverse entries as to the doubtful integrity of the petitioner. Even single such entry was enough to order compulsory retirement as the person with doubtful integrity has no place to remain in Judiciary. Thus, compulsory retirement was rightly ordered. It could have been ordered notwithstanding the fact that the petitioner was facing two departmental enquiries. There was enough material dehors of the charge-sheets also, to order compulsory retirement of the petitioner. Such a person with doubtful integrity could not have been tolerated in the system even for a moment. Thus, compulsory retirement cannot be faul-ted within the parameters available for judicial review. We are not exercising the appellate jurisdiction while making the judicial review of the action taken by the respondent no.2 on the administrative side. Merely by the fact that the petitioner was appointed in the year 1998 and his services were confirmed in 2000, nothing can be gained by the petitioner. It was obviously on the basis of the service record which was prevailing at that time but that service record spoiled once he was confirmed. Further period of one year passed and 3 ACRs written by different officers in the year 2002 and of 2003 indicates that the petitioner's integrity was not beyond doubt, his integrity was doubtful. 12. The Hon'ble Apex Court in State of U.P. vs. Vijay Kr. Jain (JT 2002(3) SC 76) has laid down that the integrity of the government employee is a serious matter and that itself was sufficient ground for compulsory retirement. Vigour or sting of an adverse entry is not wiped out merely because it is relatable to a period earlier to ten years period. Single such adverse entry is sufficient to order compulsorily retirement. In the absence of any mala fide or the decision was not in public interest, the order passed by the Govt. was held to be valid and it was held that the High Court erred in setting it aside. Single such adverse entry is sufficient to order compulsorily retirement. In the absence of any mala fide or the decision was not in public interest, the order passed by the Govt. was held to be valid and it was held that the High Court erred in setting it aside. 13. As there were as many as four entries of doubtful integrity recorded against the petitioner by different officers for the year 2002-2003, his compulsory retirement was called for in the interest of public. One such single entry was enough to order his compulsory retirement. Action has not been alleged to be malafide in any manner. Thus, the order cannot be said to be illegal or arbitrary at all. Screening was required to be done as per the instructions prevailing of such employees and such screening cannot be withheld on the ground that departmental enquiry is pending against the employee. Departmental enquiry takes care of punishment part. Screening is mandatory requirement under the prevailing Rules and Instructions. While screening the cases of all the officers is the requirement and when the cases were considered, it was found that the petitioner was not fit to be continued in service on the basis of the record and the entries made in the ACRs. Thus, notwithstanding pendency of the departmental enquiry, compulsory retirement could have been ordered on the basis of existing material dehors of the charges levelled in the file of the departmental enquiry of flouting the order passed by this Court and of District Judge, Dholpur and accepting illegal gratification of Rs.15 lakhs from the accused of Prevention of Corruption Act case. There was ample material on the record to order compulsory retirement. The petitioner was not enjoying good reputation which is necessary for retention in service. His integrity was doubtful. Thus, his compulsory retirement was justified. 14. We find no force in the submission that un-communicated adverse remarks could not have been taken into consideration while ordering compulsory retirement. The Hon'ble Apex Court in Baikuntha Nath Das vs. Chief Dist. Medical Officer, Baripada ( (1992) 2 SCC 299 ) has laid down that uncommunicated adverse remarks can also be taken into consideration. The order of compulsory retirement is not an order of punishment. The entire service record has to be considered. The Hon'ble Apex Court in Baikuntha Nath Das vs. Chief Dist. Medical Officer, Baripada ( (1992) 2 SCC 299 ) has laid down that uncommunicated adverse remarks can also be taken into consideration. The order of compulsory retirement is not an order of punishment. The entire service record has to be considered. In Union of India vs. V.P. Seth ( AIR 1994 SC 1261 ), it is laid down that uncommunicated adverse remarks can also be considered while passing order of compulsory retirement. 15. In State of Punjab vs. Gurdas Singh ( (1998) 4 SCC 92 ), it has been laid down by the Hon'ble Apex Court that 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. Thus, in the instant case, merely on the fact that he was proposed to be posted as District & Sessions Judge, nothing can be gained as he was in that cadre itself. 16. In Pyare Mohan Lal vs. State of Jharkhand & Ors. ( (2010) 10 SCC 693 = 2011(1) RLW 321 (SC)), it has been held that the entire service record has to be taken into consideration. The adverse entries can be taken into consideration even after promotion. The washed-off theory does not have universal application. There is very limited scope of judicial review in the order of compulsory retirement. It is permissible only on the grounds of non-application of mind, mala fides or want of material particulars. In the present case, no malafide is alleged and there are reports of doubtful integrity against the petitioner. Merely by the fact that he was proposed to be posted as District Judge, it could not be said to be a case of promotion but merely posting. Thus, in the instant case, considering the overall record, the compulsory retirement has been rightly ordered. There are several adverse entries of doubtful integrity and one such entry is enough to order compulsory retirement. 16. Thus, in the instant case, considering the overall record, the compulsory retirement has been rightly ordered. There are several adverse entries of doubtful integrity and one such entry is enough to order compulsory retirement. 16. Shri J.P. Joshi, counsel appearing on behalf of the petitioner, has relied upon the decision given in State of Gujarat vs. Ummed Bhai M. Patel ( (2001) 3 SCC 314 ) to contend that the order of compulsory retirement shall not be passed as a shortcut to avoid departmental enquiry when such course is more desirable and compulsory retirement shall not be imposed as a punitive measure. In the instant case, no doubt about it that the departmental enquiry was initiated. However, for ordering compulsory retirement, as already discussed, there was ample material and screening was required to be made as per the prevailing instructions. Thus, it was not a substitute or short cut to avoid departmental enquiry in the instant case. 17. The decision of Ishwar Bhai Margabhai Patel vs. State of Gujarat decided on 25.8.2000 has also been relied upon in which considering the very same record in which minor punishment was imposed, compulsory retirement has been ordered as the High Court interfered. Only departmental enquiry could not prove the doubtful integrity of the petitioner when he was visited with the minor punishment. The facts of the said case are totally different as such no sustenance can be derived by the petitioner to espouse the cause in the instant case. 18. Reliance has also been placed on the decision in the case of High Court of Punjab & Haryana vs. Ishwar Chand Jain ( AIR 1999 SC 1677 ) wherein retirement was ordered on the basis of misconduct which was subject matter of enquiry. In the instant case, ratio is not attracted for the very reason that the overall integrity was doubtful. Besides, in one case, there was an allegation of accepting illegal gratification which was subject matter of departmental enquiry. 19. Reliance has also been placed on the decision given in Nepal Singh vs. State of UP ( (1985) 1 SCC 56 ) wherein it was found that the order of compulsory retirement was camouflage for punishment. There was allegation that the appellant had married a second wife against the Government Servants' Conduct Rules. The facts in the instant case are different as such said ratio has no application. 20. There was allegation that the appellant had married a second wife against the Government Servants' Conduct Rules. The facts in the instant case are different as such said ratio has no application. 20. Reliance has also been placed on the decision given in Narendrakumar V. Parikh vs. State of Gujarat ( (1999) 2 GLR 1453 ) wherein it was held by the High Court that the charges which were subject matter of enquiry, weighed with the authority while ordering compulsory retirement. The charges were unproved and were taken into consideration. In the instant case, there were entries of doubtful integrity in the ACRs. Thus, the facts of the instant case are different one. Such single entry was enough to order compulsory retirement. The outcome of the departmental enquiry was not to have any bearing on the ACRs which were recorded. 21. Reliance has also been placed on the decision given in J.M. Mehta vs. State of Gujarat ( (1991) 1 GLR 619 ). In the said case also, decision was taken on the basis of the charges which were subject matter before the Anti Corruption Bureau, for retirement. The facts of the instant case are different as such said ratio has no application. 22. Reliance has also been placed on the decision given in Kiron Chandra Borah vs. State of Assam and Ors. ((2003) 1 GLR 337). The report of scandal was placed before the screening committee considering the aforesaid case. It was held in the case that the no reasonable person could have formed an opinion only on the basis of such reports as to the doubtful integrity. The decision instead is totally distinguishable on facts. In the instant case, the permissible material has been taken into consideration. 23. In Md.Ali Saikia vs. MSEB (1999 Vol.III LLJ 693 (Gauhati)), the order of compulsory retirement was held to be vitiated by malafides. In the instant case, there is no allegation of malafides. 24. Reliance has also been placed on the decision given in Anoop Jaiswal vs. Govt. of India ( AIR 1984 SC 636 ) wherein a probationer was discharged without holding enquiry. It was held that the order was in effect punitive and enquiry should have been held. In the instant case, the above ratio is not attracted as the compulsory retirement is based on ACRs. 25. of India ( AIR 1984 SC 636 ) wherein a probationer was discharged without holding enquiry. It was held that the order was in effect punitive and enquiry should have been held. In the instant case, the above ratio is not attracted as the compulsory retirement is based on ACRs. 25. Reliance has also been placed on the decision given in State of Gujarat vs. Suryakant Chunnilal Shah ( (1999) 1 SCC 529 ) in which it has been held that merely involvement in a criminal case is not enough to order compulsory retirement. There has to be availability of some material for forming an opinion that the employee had outlived his utility as a Government servant. In the instant case, there was material to indicate that not only the petitioner has outlived his utility but he was required to be compulsory retired as judicial system cannot tolerate persons with doubtful integrity. 26. Reliance has also been placed on the decision given in M.S. Bindra vs. Union of India ( (1998) 7 SCC 310 ) in which it has been laid down that when material available is such that no reasonable man would have reached to the conclusion, the Court can interfere. The maxim “Nemo Firut Repente Turpissimus” i.e. no one becomes dishonest all of a sudden, came to be considered. The Hon'ble Apex Court held that the doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere probability is hardly sufficient to assume that it would have happened. There must be preponderance of probability for a reasonable man to entertain doubt regarding that possibility. Only then there is justification to label an officer with doubtful integrity. No doubt that no one becomes dishonest all of sudden but the petitioner in the instant case has entered into service only in 1998 and merely on completion of 3 years period, the entries in service record indicate that he was a person of doubtful integrity. It cannot be said that these entries have occurred all of sudden. Immediately after confirmation of service, it was found that the petitioner was not enjoying good reputation, the judgments were not upto mark as well as integrity was found to be doubtful. Thus, it cannot be said that all of sudden, the petitioner became dishonest. It cannot be said that these entries have occurred all of sudden. Immediately after confirmation of service, it was found that the petitioner was not enjoying good reputation, the judgments were not upto mark as well as integrity was found to be doubtful. Thus, it cannot be said that all of sudden, the petitioner became dishonest. On the other hand, right at the threshold of the entry in his service, his integrity was adjudged to be doubtful. That was the appropriate time to take care of rotten part of the body and to chop it off. It was not possible to repair it. 27. Reliance has also been placed on the decision given in Ram Ekbal Sharma vs. State of Bihar ( AIR 1990 SC 1368 ) in which the veil was lifted and it was found that the order of compulsory retirement was in fact based on misconduct. In the instant case, when the veil is lifted, nothing is found in favour of the petitioner. It cannot be said that the order was a camouflage for an order of punishment particularly, as per the prevailing instructions, screening is necessary so as to get rid of incumbents who have outlived their utility to the system. The order of compulsory retirement is not that of punishment is a settled proposition of law. 28. In S. Ramchandra Raju vs. State of Orissa ( AIR 1995 SC 111 ), it was held that one solitary adverse report cannot be made basis for passing of the order of compulsory retirement. Here the entries were for two years and not only for one year and were recorded by four different officers and it would depend upon the facts of each case, what was the nature of the entries and the nature of service to be rendered. Judicial service require absolute integrity. Thus, no assistance can be taken by the petitioner from the said ratio particularly when the Hon'ble Apex Court has laid down in Vijay Kumar Jain (supra) and other decisions that one such entry of doubtful integrity is enough for ordering compulsory retirement. 29. Counsel for the petitioner has also submitted that the retirement has been based on non-existent facts for which he has relied upon the decision given in Smt. S.R. Venkatraman vs. U.O.I. ( AIR 1979 SC 49 ). 29. Counsel for the petitioner has also submitted that the retirement has been based on non-existent facts for which he has relied upon the decision given in Smt. S.R. Venkatraman vs. U.O.I. ( AIR 1979 SC 49 ). In the instant case, there is ample material and it cannot be said that the retirement is based on non-existent facts. 30. Counsel for the petitioner has also submitted that there was no material on record and as such, his compulsory retirement was bad in law. For this, reliance has been placed on the decision given in Swami Saran Saxena vs. State of UP ( AIR 1980 SC 269 ). In the instant case, we find ample material in the form of ACRs. 31. Counsel for the petitioner has also referred to the decision given in Sukhdeo vs. The Commissioner Amravati Division, Amravati & Anr. ( (1996) 5 SCC 103 ) as to safeguard for writing and communicating ACRs. It has been mentioned that the reporting officer should show objectivity, impartiality and fair assessment without any prejudice whatsoever with highest sense of responsibility. In the instant case, we find that three different officers in 2002 have found the petitioner to be of doubtful integrity and in 2003, there is also a report of doubtful integrity by different officer. Thus, in the facts of the instant case, we find that compulsory retirement has been rightly ordered. We cannot sit in appeal on such an order. 32. Resultantly, we find that the writ petition deserves to be dismissed and, therefore, the same is hereby dismissed. No order as to costs.