IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 04.02.2008 CORAM THE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYA AND THE HONOURABLE MR. JUSTICE M.VENUGOPAL W.P. NO. 28259 OF 2007 N.Kannaki .. Petitioner - Vs - 1. The State of Tamil Nadu rep. by The Principal Secretary to Govt. Home (CourtsI.A) Department Fort St. George, Chennai 9. 2. The High Court of Judicature at Madras, rep. by The Registrar General High Court, Madras 104. .. Respondents Writ Petition filed calling for the records relating to the proceedings of the first respondent in G.O.(2D) No. 586 Home (Courts IA) Department dated 03.10.2006 and the Notification of the Second Respondent in Notification No. 194/2006 (R.O.C. No.16/2006 Con.B1) dated 09.10.2006. For Petitioner : Mr. AR.L.Sundaresan, SC, for Ms. AL.Gandhimathi For Respondents : Mr. D.Sreenivasan, AGP for R-1 Mr. R.Muthukumaraswamy, SC, for R-2 ORDER
The petitioner was in the judicial service of the State and was functioning as Principal District Munsif, Poonamallee, (Civil Judge, Jr. Division). She having attained the age of 50 years, her case alongwith others was reviewed under Fundamental Rules 56 (2) (hereinafter referred to as ‘FR’ for short). The administrative committee of the High Court, having found the petitioner not fit for continuance in service on attaining age of 50 years, the matter was placed before the Full Court of Madras High Court, which decided to retire her from service in public interest. The recommendation having accepted and communicated, the petitioner has challenged G.O. 2 (D) No.586 dated 3rd Oct., 2006, issued from the Home (Courts I.A.) Department of the State of Tamil Nadu ‘by the order of the Governor’.
2. According to the petitioner, she was a practising advocate at Mayiladuthurai for about 13 years, applied for the post of Civil Judge, Jr. Division, in the Tamil Nadu State Judicial Service in response to advertisement issued by the Tamil Nadu Public Service Commission in the year 1995 and having been selected, was appointed by the 1st respondent and assumed office on 27th Nov., 1995. After training she was posted as Judicial Magistrate No.3 at Thanjavur. She functioned as Civil Judge, Jr. Division/Judicial Magistrate First Class at Thanjavur; as 11th Judge, Court of Small Causes at Chennai; then as Judicial Magistrate at Trichirappalli; as Principal District Munsif, Periyakulam; as Judicial Magistrate, Padmanabhapuram; as Assistant Editor of the High Court, Madras and as Principal District Munsif, Poonamallee. During her career of service between 27th Nov., 1995 to 10th Oct., 2006, she had discharged her duties sincerely, efficiently and to the best of her ability and most of her judgments stated to have been upheld. She claims that she has good rapport with all the members of the Bar and has always tried hard to keep the decorum and dignity of judicial office.
3. Further case of the petitioner is that during her 11 years of service, she has not been shown or allowed to have access to the recorded confidential reports, except for the period between 1st Jan., 2001 and 23rd July, 2001 and for the period 21st Jan., 2002 to 9th Dec., 2002, for which she was communicated with copies of recorded reports. The confidential reports for the entire period of her service other than the two short spells referred to above, according to her, should be treated as good as having no adverse remarks.
In respect of the first spell for the period from 1st Jan., 2001 to 23rd July, 2001, the remark “Poor” has been recorded against different columns and “Below Average” has been recorded against knowledge of law. She preferred representation against the adverse remarks, but it was not allowed. It is stated that there was no allegation made by any of the lawyers nor she was provided with any prior notice. The confidential reports cannot be sustained in law, according to her submission and that cannot be entertained or considered for any purpose, being void abinitio.
So far as the second spell from 21st Jan., 2002 to 9th Dec., 2002, is concerned, according to the petitioner, the only remark was that her conduct was not satisfactory, but judicial or otherwise, she had performed well as she disposed of large number of cases, which is much above the minimum disposal prescribed by the High Court. However, during the period between 15th Aug., 2002 and 1st Dec., 2002, as she had to proceed on medical leave, the disposal was below the norms.
4. Learned counsel for the petitioner submits that the adverse remarks as recorded in the character role constitute allegation; they are not based on any evidence and no reason has been shown for recording such report. It was further submitted that no departmental enquiry was initiated against the petitioner for any allegation based on vigilance reports and, thereby, she was not given any opportunity to defend herself as required under Article 311 (2) of the Constitution of India. It was further submitted that the provision of FR 56 (2) for compulsory retirement is not applicable in the case of the petitioner, if the vigilance reports are taken into account and the order of compulsory retirement has been passed casting stigma, without notice to the petitioner. It was further contended that only the adverse remarks of the last three years, i.e., 2003, 2004 and 2005 should have been considered while reviewing her case under compulsory retirement in public interest. Adverse remarks made for a short period, that too, prior to a period of three years cannot be acted upon for retiring the petitioner in public interest. If the entire period of service is taken into consideration, the period of adverse remarks would become negligible, rendering the order illegal and bad in law.
5. While referring to her character role of 2001 and the impugned order passed by State of Tamil Nadu, learned counsel for the petitioner submitted that the adverse remarks as recorded amounts to casting aspersion on the petitioner; the order of compulsory retirement having been passed on the basis of such character role cannot be treated in public interest and being penal in nature is void abinitio. Further, according to him, the character role of two short periods are based on mere surmises and extraneous and, therefore, the impugned order based on such adverse remarks is non est in the eye of law.
Learned counsel for the petitioner relied on Supreme Court decision in Ram Ekbal Sharma Vs State of Bihar & Anr. reported in 1990 (2) LLJ 601 (SC). In the said case, the Supreme Court decided as to when and where the court could lift the veil of secrecy, if order suggests to be innocuous, but found to have been made for other purpose.
Reliance was also placed on decision in S.Ramachandra Raju – Vs State of Orissa reported in AIR 1995 SC 111, wherein, taking into consideration the solitary adverse report against the employee for one year, the order of compulsory retirement was passed ignoring the earlier and subsequent reports showing the employee meritorious in service. In the said case, the Supreme Court held that the entire service record has to be taken into consideration before compulsory retirement, more particularly, the latest, for forming opinion.
Reliance was also placed on Supreme Court decision in R.K.Panjetha – Vs Haryana Vidyut Prasaran Nigam Ltd. & Anr. reported in 2002 (10) SCC 590. Therein, the Court decided the question whether order of compulsory retirement under challenge was was punitive or simplicitor. That was a case in which on the basis of a report and recommendation of a committee, the appointing authority derived opinion that the integrity of the officer was doubtful and it was not in the interest of the company to keep the employee in service. In this background, the Supreme Court held such decision as stigmatic and punitive, as not having based on service record.
6. Learned counsel for the 2nd respondent, High Court, submitted that the total record of service of the petitioner, including the character roles, which are good or adverse were placed before the administrative committee by the order of the Hon’ble the Chief Justice. The administrative committee, after taking into consideration the total records of service, including character role and those adverse character role for which the petitioner was informed, came to its conclusion in its meeting dated 23rd Jan., 2006, not to recommend her name for further continuance in the judicial service in public interest. Case of others, who had also crossed 50 years of age were also considered along with the petitioner and on the basis of their service record, recommendation was made to allow them to continue in service. The matter was placed before the Full Court of this Court by circulation of the minutes of the Administrative Committee, and the Full Court accepted the recommendations of the Administrative Committee and decided to retire the petitioner from service under FR 56 (2) in public interest.
The original records, including the copies of the character role, etc., and the proceedings of the administrative committee and Full Court were placed before the Court. Reliance was also placed on one or other decision of the Supreme Court and this Court.
7. We have heard the parties, noticed the rival contentions, original records placed by the respondents and gone through the decisions rendered by the Supreme Court.
8. Before determining the claim of the petitioner, it is desirable to notice some of the observations made by the Supreme Court with regard to adverse remarks, including uncommunicated adverse remarks.
In the case of Baikuntha Nath Das Vs The Chief District Medical Officer, Baripada reported in AIR 1992 SC 1020, while the Supreme Court held that uncommunicated adverse remarks can be considered for compulsory retirement, further held that the circumstances by itself cannot be a basis for interference, because principles of natural justice have no place in the context of an order of compulsory retirement. The nature of function to compulsory retire is not quasi-judicial in nature and as the action has to be taken on the subjective satisfaction of the Government, there is no room for importing the facet of natural justice. The Supreme Court further held that the High Court or the Supreme Court could not examine the matter as an appellate court and may interfere only if they are satisfied that the order passed is (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.
So far as the adverse entries in the confidential report is concerned, whether the reporting authority to give specific incidents to enable adequate representation and whether an opportunity to be heard is to be given, where an adverse entry amounts to censure, fell for consideration before a Constitution Bench of Supreme Court in R.L.Butail Vs Union of India reported in 1970 (2) SCC 876. In the said case, the Supreme Court held that a confidential report is intended to be a general assessment of work performed by employee subordinate to the reporting authority and such reports are maintained for the purpose of serving as data of comparative merit when questions of promotion, confirmation, etc., arise. Such reports are not ordinarily to contain specific incidents upon which assessments are made except in cases where, as a result of any specific incident a censure or warning is issued and that such warning has to be an order to be kept in personal file of the employee. The Supreme Court further proceeded to hold that the rule neither provided for nor require any opportunity to be given to the employee to be heard before any adverse entry is made. It is not equivalent to imposition of penalty.
Normally Annual Confidential Reports (ACR) are maintained by the employer and in case where punishment, etc., is inflicted after following the procedure and notice to the charged employee, they are kept on record, commonly known as Permanent Confidential Report (PCR).
So far as the present case of petitioner is concerned, what has been brought on record is ACR of the petitioner of different periods and not PCR and, therefore, the argument as advanced by counsel for the petitioner that specific incidents should have been mentioned in the ACR or that she should have been given opportunity cannot be accepted and such submission is rejected.
The validity of compulsory retirement, when fell for consideration before the Supreme Court in State of Gujarat Vs Umedbhai M.Patel reported in 2001 (3) SCC 314, the Supreme Court noticed earlier decisions rendered in State of Orissa Vs Ram Chandra Das (1996 (5) SCC 331), wherein Supreme Court reiterated “that the Government is empowered and would be entitled to compulsorily retire a government servant, in public interest, with a view to improve efficiency of administration or to weed out the people of doubtful integrity or, who are corrupt, but sufficient evidence was not available to take disciplinary action in accordance with the rules so as to inculcate a sense of discipline in service. But the Government, before taking such decision to retire a government employee compulsorily from service, has to consider the entire record of the government servant, including the latest report.” (Emphasis added).
In the said case, the Supreme Court, while noticed the case of Baikuntha Nath Das (supra), also noticed its decision in Allahabad Bank Officers Association Vs Allahabad Bank reported in 1996 (4) SCC 504, wherein the Supreme Court held that “power of compulsorily retiring a government servant is one of the facets of doctrine of pleasure incorporated under Article 310 of the Constitution. The object of compulsory retirement is to weed out the dead wood in order to maintain efficiency and initiative in service and also to dispense with the service of those whose integrity is doubtful so as to preserve purity in the administration.” (Emphasis added).
At para-11 of the judgment in Umedbhai M.Patel (supra), the principles were summarised as follows :-
“11. The law relating to compulsory retirement has not crystallised into definite principles, which could be broadly summarised thus :
(i) Whenever the services of a public 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.”
9. FR 56 (c) of the U.P. Fundamental Rules, which provides for compulsory retirement of a government servant and similar to FR 56 (2) of the Tamil Nadu Fundamental Rules, fell for consideration before Supreme Court in State of U.P. & Ors. – Vs Vijay Kumar Jain reported in 2002 (3) SCC 641. Referring earlier decisions in Shyamlal Vs- State of U.P. reported in AIR 1954 SC 369, it was held that an order of compulsory retirement is neither a punishment nor is any stigma attached to it.
The case of compulsory retirement of U.P. Judicial Officers again fell for consideration before the Supreme Court in Nawal Singh Vs State of U.P. reported in 2003 (8) SCC 117. FR 56 of U.P. Fundamental Rules was noticed. In the said case, the Supreme Court observed as follows :-
“2. At the outset, it is to be reiterated that the judicial service is not a service in the sense of an employment. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Further, the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. If such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same, particularly because the order of compulsory retirement is based on the subjective satisfaction of the authority.”
In the case of S.D.Singh Vs Jharkhand High Court reported in 2005 (13) SCC 737, the Supreme Court, having noticed that the petitioner had not urged any ground of mala fide and in the counter affidavit it has been stated that the valuation committee had taken into consideration the petitioner’s ACR, many of which showed that the petitioner of the said case was an average officer, particularly in respect of the years immediately preceding the petitioner’s reaching the age of 58 years and that a vigilance proceeding had been initiated against the petitioner on the basis of several allegation made against him, including a report made by the inspecting Judge, who had made inspection, held that “it cannot be said that there was no material on the basis of which the valuation committee and subsequently the Full Court of the High Court forming the opinion that the petitioner was not suitable for continuing in service beyond the age of 58 years.”
10. So far as the case of the petitioner is concerned, she has made wrong statement in her affidavit that there was no adverse remarks other than the adverse remarks for the periods 1st Jan., 2007 and 23rd July, 2001 and 21st Jan., 2002 to 9th Dec., 2002. From the records, it will be evident that for the period 28th July, 1998 to 18th Nov., 1998, and 19th Nov., 1998 to 31st Dec., 1998, adverse remarks were recorded, including adverse remarks regarding her reputation, i.e., honesty and integrity, as quoted hereunder :-
“For the period from 28.07.98 to 18.11.98 :
3. Promptitude in disposal of cases :
a) Current | “Poor”
b) Old |
5. Supervision and Control :
b) On Office Staff | Poor
6. Attitude towards
b) Subordinates | Poor
“For the period from 19.11.98 to 31.12.98 :
4. a) Industry | b) Aptitude for hard work/ | heavy work | "Poor" c) Readiness to take up | responsibility | 8. Outlook towards : a) Members of the Bar | "Poor" 9. Reputation as to a) Honesty | "Poor" b) Integrity | 10. Overall view | "Poor. Must improve"
Those adverse remarks were communicated to her against which she represented on 30th Nov., 1999 and requested to expunge those remarks. At that stage, taking into consideration the fact that it was the first time such remarks was made about her honesty and integrity, the portfolio Judge, vide note dated 5th June, 2000, observed that the District Judge seems to have taken hostile attitude and, thereby recommended to expunge the same by treating as ‘satisfactory’, which was accepted by the then Hon’ble Chief Justice of this Court.
Even for the subsequent period when she was functioning as Judicial Magistrate, Tiruchirappalli, in a separate district, in the character role for the period 1st Jan., 2001 to 23rd July, 2001, and 21st Jan., 2002 to 9th Dec., 2002, adverse remarks were recorded, as quoted hereunder :-
For the period from 01.01.01 to 23.07.01 :
Quality of Judgment/Order
Knowledge of Law and Procedure
Conduct and Dignity
Members of the Bar
Reputation as to
“Poor performance as Judicial Officer”
For the period from 21.01.02 to 09.12.02 :
“Conduct not satisfactory, both judicial and otherwise”
Those adverse remarks of subsequent periods were again communicated to the petitioner vide official memorandum dated 23rd Oct., 2002 and 3rd Oct., 2003. The representations preferred by the petitioner against those adverse remarks were rejected and, thereby, reached finality as she never challenged the same before this Court.
In the review application preferred by the petitioner against the order of compulsory retirement, she has mentioned about the character role and extract of the 2001 character role has been given, but no denial has been made with regard to the adverse remarks of the subsequent year, which was recorded by the portfolio Judge of this Court, particularly with regard to her integrity.
11. From the different adverse remarks recorded, it will be evident that her Quality of Judgment has been adjudged as ‘Poor’; Knowledge of Law and Procedure ‘Below Average/Poor’; “Conduct and Dignity Inside and Outside Court” ‘Poor’ and particularly “Honesty, Integrity and Impartiality” ‘Poor/Doubtful Integrity’. For the period 21st Jan., 2002 to 9th Dec., 2002, a Honourable Judge of this Court even observed that “Her conduct is not satisfactory, both judicial and otherwise.”
12. From the judgments as noticed and referred to above, it will be evident that the judicial officers, whose conduct and integrity is doubtful, they can be compulsorily retired from service for the sake of public interest.
13. In the present case, the petitioner has not alleged any mala fide against any individual nor there is anything on the record to suggest that the order was passed to avoid any departmental enquiry or that she was promoted to higher post/grade even after such adverse remarks. Apart from the fact of poor knowledge of law, poor standard of judgments and poor conduct in the court, as reflected in the character role of different years, the integrity and conduct of the petitioner being doubtful, on attaining 50 years of age if she has been compulsorily retired from service under FR 56 (2), it requires no interference.
However, a further question may arise as to whether a judicial officer on whom the Full Court, i.e., all Judges of the High Court lose their faith and trust, should be reinstated on appreciation of service records. We are not deliberating on this issue, which may be determined in an appropriate case.
14. There being no merit, the writ petition is dismissed. But in the facts and circumstances, there shall be no order as to costs.
1. The Principal Secretary to Govt.
Government of Tamil Nadu
Home (CourtsI.A) Department
Fort St. George
2. The Registrar General
High Court of Madras