IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 28/08/2003
Coram
The Honourable Mr. Justice P.K. MISRA
and
The Honourable Mr. Justice F.M. IBRAHIM KALIFULLA
W.P.No.19370 of 1999
V.Radhakrishnan .. Petitioner
-Vs-
1. The State of Tamil Nadu,
rep. by its Chief Secretary
to Government,
Public (Special-A) Department,
Fort St.George,
Chennai-600 009.
2. The High Court of Judicature,
rep. by its Registrar,
Chennai-600 104. .. Respondents
Petition under Article 226 of the Constitution of India,
praying to issue a writ of certiorarified Mandamus, for the reasons as stated
therein.
For Petitioner : Mr. K.Chandru, S.C.,
for Mr.Md.Ibrahim Ali
For Respondents : Mr. Mr.S.T.S.Murthy, Spl.G.P.
:O R D E R
F.M.IBRAHIM KALIFULLA, J.
The petitioner has come forward with the prsent Writ Petition,
challenging the order of compulsory retirement passed in G.O.Ms.No.64 Home
(Courts-IA) Department, dated 21-01-1999 as well as the subsequent order in
letter No.15741/Courts-IA/99 dated 10-11-1999.
2. At the relevant point of time, the petitioner was working
as District Munsif-cum-Judicial Magistrate of II Class, Neyveli. He joined
the services of the Judiciary as Judicial II Class Magistrate under
G.O.Ms.No.918 Home dated 21-4-1981. Previously, he was employed as Assistant
in the Prohibition and Excise Department in the state of Tamil Nadu. He was
posted as Judicial Second Class Magistrate at Vilathikulam on 4-3-1982. His
date of birth is 30-7-1948. So, in the second half of 1998, the case of the
petitioner was ripe for review under FR 56(2) by the Review Committee as he
was 50 years at that point of time. The petitioner’s records were considered
by the Review Committee along with certain other officers and it was resolved
not to recommend the petitioner for continuance in service beyond the age of
50 years and that in the public interest, he should be compulsorily retired.
The recommendation of the Review Committee was placed before the Full Court
which also approved the minutes of the Review Committee, recommending the
compulsory retirement of the petitioner. Based on the recommendation of the
Full Court, the Government issued G.O. Ms.No.64, dated 21-1-1999. Against
which, the petitioner preferred a review and as there was no provision for
review, the same was also rejected.
3. Mr.K.Chandru, learned Senior counsel appearing for the
petitioner contended that during the period of his service as Judicial
Officer, the petitioner had unblemished record of service except on one
occasion where a remark came to be made in the year 1994 to the effect that he
must improve his performance; that even the said remark was communicated to
the petitioner only on 11-9-1996; that on 9-6-1998 another communication was
served on him where again it was mentioned “… poor disposal’, for lack of
procedural laws and lack of aptitude of hard work”; and that at that point of
time, as the Court was newly set up, the petitioner did not have the
assistance of the Stenotypist. According to the petitioner, the then District
Judge, Cuddalore who was presiding over the Court in the year 1996-97 was
prejudiced against him and therefore, the said remarks came to be made. It
was contended that as there was no indication in the communication served on
him, within which time, he should submit his reply, he could not respond to
the said communication. It is, therefore, contended that barring the above,
when the performance is considered, the disposal of the cases was substantial,
except when he came to be posted as District Munsif. According to the
petitioner, all along he was manning only Criminal Courts as Judicial
Magistrate and therefore, when he came to be posted as District Munsif to
handle the civil cases, due to initial hurdles though the disposals were not
appreciable, that cannot be a ground for taking the extreme step of
compulsorily retiring him from the service. The learned Senior counsel
contended that when there were no adverse remarks against the petitioner and
since the lack of performance was the only allegation against him, the
petitioner ought not to have been compulsorily retired as it caused extreme
hardship to the petitioner.
4. As against the above submissions, learned Spl.Government
Pleader appearing on behalf of the respondents after placing the personal
record of the petitioner before us, contended that the overall performance of
the petitioner was very poor, that there were adverse entries against the
petitioner, some of which were also communicated to the petitioner and in the
circumstances, as the continuation of the petitioner in service beyond 50
years was found to be not in public interest, the respondents had no other
option except to compulsorily retire him from service.
5. We had the advantage of perusing the personal records
files of the petitioner. Initially up to the middle of 1995, there was
nothing against the petitioner. Thereafter, there was a gradual decline in
the performance of the petitioner. Up to May 1995, the petitioner was working
as Judicial Magistrate, Rasipuram. On and from 1-6-1995, he was posted as
District Munsif, Vridhachalam. Thereafter, it was found that the petitioner
was not able to give satisfactory disposals on the civil side. In fact, in
the performance appraisal for the period 1-1-1996 to 31-3-1996 and from
1-4-1996 to 13-8-1996, it was found out that there was sharp decline in his
performance and a remark came to be made in his confidential record that he
should improve his overall performance. That was an assessment made by the
Honourable Judge of this Court who had the opportunity to appraise his
performance. Even his performance between 28-8-1996 to 31-12-1996 was found
to be ‘poor in all respects’ by the Unit Head, which was also endorsed by the
concerned Portfolio Judge. Therefore, the petitioner was issued with an
Official Memorandum dated 26-5-1998 pointing out that his disposal was poor
and the same was due to lack of knowledge of procedural laws and also due to
lack of aptitude for hard work.
6. Though the petitioner acknowledged the office memorandum
on 15-6 -1998, he had no explanation to offer. Again when his performance was
appraised between 1-1-1997 and 6-4-1997, his industry and aptitude for hard
work was found to be ‘poor’ by the Unit Head as well as the concerned
Portfolio Judge. Such remarks were based on the statistics available on
record. The same position continued even during the period 7-4-1997 to
26-5-1997. Even during the period 2-6-1997 to 31-12-1997 as Judicial
Magistrate-cum-District Munsif, Neyveli, the petitioner was disposing of at an
average only two suits per month which was found to be ‘not satisfactory’ at
all. Further in respect of his honesty, integrity and impartiality also, it
was found to be ‘very poor’ apart from his promptitude in disposal of the
cases not having improved in the report covering the period 1-1-1998 to
18-2-1998. Even during the period 19-2-1998 and 31-12-1998, the same position
continued and the remark in the record was ‘poor’ in performance and ‘very
poor’ as regards his honesty, integrity and impartiality, and overall view was
also noted as ‘not satisfactory’. When such were the adverse entries made in
the personal confidential record of the petitioner, the Review Committee while
considering the same, thought it fit not to continue him in service beyond 50
years. As the Full Court was also convinced with the recommendation of the
Review Committee, the impugned order of compulsory retirement came to be
passed.
7. With the above background in regard to the petitioner’s
service, when the principles relating to compulsory retirement of a public
servant, as laid down by the Hon’ble Supreme Court in the various decisions
can be considered.
8. In this context, we wish to be guided by the settled
principles laid down by the Hon’ble Supreme Court in the cases relating to
compulsory retirements. Of the various judgments cited at the Bar, we feel
that certain definite principles set out in some of the decisions alone would
be sufficient for our present purpose. We find such guidelines from the
following judgments, namely, the cases reported in 19 92 (2) SCC 299, AIR 1999
SC 1677, 2001(3) SCC 314, AIR 2002 SC 1345 (cited supra).
9. In AIR 1992(2) SLR 299 (BAIKUNTHA NATH DAS AND ANOTHER
versus CHIEF DISTRICT MEDICAL OFFICER BARIPADA AND ANOTHER), in paragraph 34,
five principles have been set out which reads as under:-
“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; is 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 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 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 uncommunicated
adverse remarks were also taken into consideration. That circumstance by
itself cannot be a basis for interference.”
10. In the Judgment reported in AIR 1999 SC 1677 (HIGH COURT
OF PUNJAB & HARYANA THOUGH R.G. Versus ISWAR CHAND JAIN AND ANOTHER),
paragraph 31 is relevant for our purpose
“31. … In the case where Full Court of the High Court
recommends compulsory retirement of an officer High Court on judicial side has
to exercise great circumspection in setting aside that order. Here it is a
complement of all the judges of the High Court, who go into the question. It
may not be possible that in all cases evidence would be forthcoming about the
doubtful integrity of a judicial officer and at times Full Court has to act on
the collective wisdom of all Judges.”
11. In 2001(3) SCC 314 (STATE OF GUJARAT versus UMEDBHAI
M.PATEL), the law relating to compulsory retirement was considered and the
crystallised principles were stated as under in paragraph 11:
“11. The law relating to compulsory retirement has now
crystallised into a 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.”
12. In AIR 2002 SC 1345 (STATE OF U.P. & OTHERS versus VIJAY
KUMAR JAIN), the Hon’ble Supreme Court has laid stress on the integrity of a
Government Employee in the following words in paragraph 14.
“14. …. Integrity of a Government employee is foremost
consideration in public service. If a conduct of a Government employee
becomes unbecoming to the public interest or obstruct the efficiency in public
services, the Government has an absolute right to compulsorily retire such an
employee in public interest. The Government’s right to compulsorily retire an
employee is a method to ensure efficiency in public service and while doing so
the Government is entitled under Fundamental Rule 56 to take into account the
entire service record, character roll or confidential report with emphasis on
the later entries in the character roll of an employee. In fact, entire
service record, character roll or confidential report furnishes the materials
to Screening Committee or the State Government, as the case may be to find out
whether a Government Servant has outlived his utility in service. It is on
consideration of totality of the materials with emphasis on the later entries
in the character roll, the Government is expected to form its opinion whether
an employee is to be compulsorily retired or not.”
13. While the principles relating to compulsory retirement
has been so succinctly set out by the Honb’le Supreme Court in above referred
decision, the question is whether the order of compulsory retirement issued to
the petitioner and impugned in this Writ Petition calls for interference.
14. In G.O.Ms.623, 14-7-1983 and the appended guidelines, it
is stated that ‘in cases where the Government have a reasonable cause to
believe that an officer is lacking in integrity’, that would be an appropriate
ground to consider him for compulsory retirement irrespective of an assessment
of his ability or efficiency in work. It is also stated therein that, ‘in
cases where the Government have reason to believe that the Officer habitually
takes bribe but there is no proof of a specific act of corruption or where the
Officer has a bad reputation and where there is abundant suspicion against him
even though the guilt may not have been established, such case can also be
brought for review.
15. As stated earlier, though in the initial part of the
service of the petitioner in his judicial career, while working as Judicial
Magistrate, the petitioner had shown sufficient disposals in the matter of
criminal cases, we find that after his posting as District Munsif, i.e. on
the civil side of his Judicial career, the petitioner was finding it difficult
to improve his performance. His allegation that the concerned Principal
District Judge was not getting along with the petitioner was not substantiated
and based on a stray averment contained in the affidavit, we are unable to
hold that the adverse entry in the personal record by the Unit Head, namely,
the then District Judge of Cuddalore was due to personal animosity as against
the petitioner. Even the statistics of disposals made by the petitioner were
admittedly far low even after he was advised through official memorandum by
the Registry of the High Court once in the year 1996 and 1998 which only shows
that the petitioner was not able to show sufficient improvement in the
disposal of the civil cases. When the petitioner goes up in the ladder in the
judicial career, he has to necessary deal with not only the criminal matters,
but also the civil cases of substantial nature. When the petitioner was not
able to cope up with the nature of the work entrusted to him in his capacity
as District Munsif while handling the civil cases, it can only be said that he
was incapable of improving himself to the expectation of the job entrusted him
as he goes up in the ladder. In such circumstances, when constantly his
performance was found to be declining right from the year 1996, this Court had
no option except to view it seriously at the time when the question of
continuing him in service beyond 50 years came up for consideration.
16. It will have to be reiterated that when the petitioner
came to be appointed as District Munsif after 1995, there was no scope to
restrict his work to that of criminal cases alone. Necessarily he had to
handle the civil cases thereafter and when in spite of repeated persuasions
when he was not able to show any improvement, the compulsory retirement of the
petitioner on completion of 50 years became inevitable. Further, it was also
found out that his honesty and integrity was also not satisfactory and the
endorsements found in the personal files after 1996 discloses that even his
integrity and honesty was also ‘poor’. A perusal of the Vigilance files do
show that there were numerous complaints against the petitioner though many of
them found to be not substantiated. In the said circumstances, when the
principles set out in the above referred to judgments of the Hon’ble Supreme
Court are applied, especially the third principle set out in AIR 19 92(2) SLR
299, viz., that there being no mala fide or the action being not arbitrary or
that the decision was based on sufficient material available on record, it
will have to be held that the order of compulsory retirement imposed on the
petitioner cannot be interfered with. Equally as held by the Hon’ble Supreme
Court in the Judgment reported in 2001(3) SCC 314, the adverse entries found
in the confidential record, which had the endorsement of the concerned Judge
of this Court merits due weightage. In fact, the entries made in the
confidential records were also duly communicated to the petitioner. When the
entire service record of the petitioner is thus perused, we find that in the
better administration, it became necessary for the Review Committee to
recommend for the petitioner’s compulsory retirement which was found to be
perfectly justified by the Full Court.
17. Therefore, by applying the principles set out in the
judgment reported in AIR 1999 SC 1677, when the Full Court of this Court,
after considering the entire service record of the petitioner, recommended his
compulsory retirement, there is very little scope for this Court to scrutinise
the same in this Writ Petition in the absence of apparent perversity,
arbitrariness or mala fide. In the case on hand, the only mala fide was
alleged against the then District Judge of Cuddalore. As we have held
earlier, the same was not substantiated at all. A perusal of the personal
records of the petitioner reveals that the conclusion of the Review Committee
as well as that of the Full Court was based on acceptable material and well
founded and therefore, we do not find any scope to interfere with the said
decision.
We do not find any merit in this Writ Petition. The Writ
Petition, therefore fails and the same is dismissed. No costs.
Index: Yes
Internet: Yes
suk.
To
1. The Chief Secretary
The State of Tamil Nadu,
to Government,
Public (Special-A) Department,
Fort St.George,
Chennai-600 009.
2. The Registrar,
The High Court of Judicature,
Chennai-600 104.