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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SCA/8483/2010 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8483 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
AND
HONOURABLE
MR.JUSTICE K.M.THAKER
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=================================================
N
P MEHTA - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 1 - Respondent(s)
=================================================
Appearance
:
MR
NIRAV C THAKKAR for Petitioner(s) : 1,
MS KRINA P CALLA, AGP for
Respondent(s) : 1,
MR JB PARDIWALA for Respondent(s) :
2,
=================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 07/10/2010
CAV
JUDGMENT
(Per
: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA)
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 RP
Malhotra vs. 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 RP
Malhotra vs. 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 vs. VP 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 vs. Chief District Medical Officer, Baripada,
reported in 1992 (2) SCC 299 and Posts
& Telegraphs Board vs. 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 vs. VP Sheth
[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.
(v) An
order of compulsory retirement is not liable to be quashed by a Court
merely on the showing that while passing it uncommunicated 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, uncommunicated adverse remarks can be noticed for retiring
an officer in the public interest.
8. In the
case of Baikuntha
Nath Das vs. Chief District Medical Officer, Baripada
[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 vs. 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 :
An
order of compulsory retirement is not a punishment. It implies no
stigma nor any suggestion of misbehaviour.
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.
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.
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.
An
order of compulsory retirement is not liable to be quashed by a
court merely on the showing that while passing it uncoomunicated
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 vs. 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
1.1.2001 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. 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.
[S.J.
MUKHOPADHAYA, CJ.]
[K. M.
THAKER, J.]
Sundar/-
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