{"id":55549,"date":"1999-04-26T00:00:00","date_gmt":"1999-04-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/high-court-of-punjab-and-haryana-vs-ishwar-chand-jain-and-anr-etc-on-26-april-1999"},"modified":"2018-12-07T07:04:43","modified_gmt":"2018-12-07T01:34:43","slug":"high-court-of-punjab-and-haryana-vs-ishwar-chand-jain-and-anr-etc-on-26-april-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/high-court-of-punjab-and-haryana-vs-ishwar-chand-jain-and-anr-etc-on-26-april-1999","title":{"rendered":"High Court Of Punjab And Haryana … vs Ishwar Chand Jain And Anr. Etc on 26 April, 1999"},"content":{"rendered":"
Supreme Court of India<\/div>\n
High Court Of Punjab And Haryana … vs Ishwar Chand Jain And Anr. Etc on 26 April, 1999<\/div>\n
Bench: D.P. Waphwa, K Santosh Hegde<\/div>\n
           CASE NO.:\nAppeal (civil)  2465 of 1999\n\nPETITIONER:\nHIGH COURT OF PUNJAB AND HARYANA THROUGH R.G.\n\nRESPONDENT:\nISHWAR CHAND JAIN AND ANR. ETC.\n\nDATE OF JUDGMENT: 26\/04\/1999\n\nBENCH:\nD.P. WAPHWA & K SANTOSH HEGDE\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
1999 (2) SCR 834<\/p>\n
The Judgment of the Court was delivered by D.P. WADHWA, J. Leave granted.
\nDelay condoned in S.L.P. (C) No. 1830 of 1999.\n<\/p>\n
High Court of Punjab and Haryana is aggrieved by the judgment dated May 22,
\n1998 of a Division Bench of its own High Court on judicial side setting
\naside the order of the State of Haryana, Respondent No. 2, pre-maturely
\nretiring the first respondent Ishwar Chand Jain (hereinafter referred to as
\n“Jain”), a member Of the superior judicial service of the State of Haryana
\non the recommendation of the High Court.\n<\/p>\n
Jain, a practising advocate of 14 years standing, joined the superior
\njudicial service of the State of Haryana after his selection by the High
\nCourt. He joined service on May 2, 1983 and under Rule 10 of the relevant
\nrules put on probation for a period of two years. He was posted at Hissar
\nas Additional District and Sessions Judge. In The year 1983-84 inspection
\nof his court was made by the inspecting judge of the High Court, who graded
\nhis work as “B-satisfactory”. Full Court of the High Court reduced this
\ngrading to “B-average\/satisfactory”. For the subsequent year 1984-85 Jain
\nwas posted at Narnaul. The inspecting judge graded him “B+(Good)”. Full
\nCourt of the High Court, however, graded it to “C-Below Average”. While the
\ninspecting judge considered “knowledge of law and procedure” of the officer
\nas “”good””, High Court recorded it as “Poor”. Against the column “If the
\nOfficers was Industrious and prompt in disposal of the cases and has he
\ncoped effectively with heavy work” inspecting judge gave him the remarks as
\n“yes”, High Court said it is “No”. Against the column “whether the
\njudgments’and orders were well written and clearly expressed”, the
\ninspecting judge said “Yes+B(Good)”. There is no such column in the form of
\nrecording ACR by the High Court. Inspecting judge said officer was an
\nefficient judicial officer and had maintained the judicial reputation for
\nhonesty and impartiality. According to High Court there was “scope for
\nimprovement”, About his attitude towards members of the Bar and the public
\nthe inspecting judge recorded that “some members of the Bar were
\ncomplaining about his unaccommodating nature.” High Court used this entry
\nto say “scope for improvement”.\n<\/p>\n
In the Full Court meeting of the High Court held on March 21, 1985 the High
\nCourt resolved that the work and conduct of Jain was not satisfactory and
\nthat his services deserved to be dispensed with forthwith. It made
\nrecommendation to the State Government for issuing necessary orders in mis
\nrespect. Extract of the proceedings of Pull Court meeting of the High Court
\nheld on March 21, 1985 is as under<\/p>\n
“The matter regarding Shri I.C. Jain, Additional District and Sessions
\nJudge, was considered. In view of the fact that his period of probation of
\ntwo years is going to expire on 2nd May, 1985 his performance as Additional
\nDistrict and Sessions Judge was reviewed. It was decided on further
\nconsideration mat during this period, his work and conduct was not
\nsatisfactory and his services deserve to be dispensed with forthwith.
\nConsequently, a recommendation be made to the State Government for issuing
\nnecessary orders in this respect.”\n<\/p>\n
Jain challenged the recommendation of the High Court terminating his
\nprobation by filing a writ petition in the High Court (CWP No. 2213 of
\n1986). A Division Bench of the High Court by its judgment dated December 9,
\n1986 dismissed the same. The Division Bench also observed that the Governor
\nhad since accepted the recommendation of the High Court dispensing with the
\nservices of Jain in terms of Rule 10(3) of me Rules. Then it directed that
\nformal order in that regard shall be issued by the State Government without
\nfurther delay. Against that Jain came to this Court seeking leave to
\nappeal. This Court granted him leave and by judgment dated May 26, 1988 set
\naside the judgment of the High Court This Court held that the modification
\nof the ACR by the Full Court for the year 1984-85 from “B+Good” to ” C-
\nBelow Average” was based on no material and unsustainable in law. The
\nresult was that Jain was put back in service. He joined his duty on June
\n9,1988. He was, however not granted consequential benefits on his
\nreinstatement and he approached this Court again by filing an Interlocutory
\nApplication, which was allowed by order dated September 11, 1988 and the
\noriginal seniority of Jain was restored by the High Court.\n<\/p>\n
ACRs of Jain for the years 1985-86, 1986-87 and 1987-88 were not written
\nbecause he was not in service during the period. For the year 1988-89 the
\ninspecting judge graded him “B+(Good)” by his report dated March 21, 1989.
\nFull Court the High Court, however, graded it as “B(Satisfacotry)”. After
\nbeing reinstated Jain was posted at various places in the State. His
\ncomplaint was also that he was entitled to be posted as District and
\nSessions Judge and even Legal Remembrancer to the State, which was
\nencadered post, yet these were not given to him. However, this is not
\nrelevant for our purpose and we need not go into the grievance of Jain.\n<\/p>\n
For the year 1991 Jain was posted as Additional District and Sessions Judge
\nat Jind. It is alleged that during his tenure at Jind several complaints
\nwere received from members of the Bar relating to his judicial work. On the
\nbasis of the complaint Full Court of the High Court directed the District
\nand Sessions Judge (Vigilance), Haryana to conduct an inquiry into the
\nallegations levelled against Jain. District and sessions Judge (Vigilance)
\nsubmitted his Inquiry Report on April 10,1992, which was placed before the
\nFull Court for necessary action . It is not that complaints were made by
\nthe Bar of the Jind District and these were made only by one advocate Shri
\nK.C. Sharma. They were in all ten complaints. These Were thoroughly gone
\ninto by the Inquiry Officer and his conclusion is reproduced as under :\n<\/p>\n
“Out of the ten cases mentioned herein before, bias of the Presiding
\nOfficer is prima facie proved in cases mentioned at serial Nos. 2,4,5,6,8
\nand 10. From these eases, nothing can be inferred about any other
\nconsideration having played part in delivering these judgments. Thus, as
\nfar as these complaints are concerned, these do not make out prima facie
\ncase against the Presiding Officer, except that it does show element of
\nbias against the complainant. I would, therefore, suggest mat the
\ncomplaints be filed but the directions be given to the District Judge to
\ntransfer all the cases of the complainants from the court of Shri Jain and
\nfix them either before himself or other Additional District and Sessions
\nJudge. In future also he should not send any case of the complainant to the
\nCourt of Shri Jain till he remains posted in that District or any other
\norders deemed fit.”\n<\/p>\n
After considering the conclusion aforesaid in the Inquiry Report Full Court
\nin its meeting held on April 24, 1992, decided that Jain be charge-sheeted
\nand judicial work be withdrawn from his eoort. Relevant extract of the
\nminutes of the Full Court meeting is as under :-\n<\/p>\n
“6 & 8. The matter regarding preliminary enquiry report submitted by Shri
\nB.L. Gulati, District and Sessions Judge (Vig) Haryana with regard to the
\ncomplaint dated 26.12,91 made by Sh. K.C. Sharma Advocate of Jind and some
\nother matters concerning Sh, I.C. Jain, Additional District & Sessions
\nJudge, Jind and that of preliminary enquiry report dated 10.4.92 submitted
\nby Sh. B.L. Gulati, DJ.V. (Haryana) on the complaints dated 17.8.91,
\n28.8.91, 29.8.91, 3.9.91 and 22.10.91 made by Shri Krishan Chander Sharma,
\nAdvocate, Jind was considered along with the note of the Registrar and it
\nwas decided that the Officer be charge-sheeted and judicial work be
\nwithdrawn from his court,”\n<\/p>\n
A charge-sheet was served upon Jain on July 29, 1992 and he was called upon
\nto submit his-reply thereto. His reply was considered by the Full Court and
\nwas found to be wholly urlsatisfactory. It was, therefore, directed that a
\ndepartmental inquiry be conducted against Jain and that in (he meantime he
\nbe placed under suspension. This was by resolution of the Full Court
\nmeeting dated September 28, 1992. Extract of this meeting of Full Court is
\nas under :-\n<\/p>\n
“13 The matter regarding reply to the charge-sheet submitted by Shri I.C.
\nJain, Additional District & Sessions Judge, Jind was considered along with
\nthe note of the Registrar and the same was found unsatisfactory.\n<\/p>\n
It was accordingly decided that a regular departmental enquiry be held
\nagainst him. Hon’ble Mr. Justice V.K. Jhanji and Shri H.S, Gill, Advocate,
\nwere appointed Enquiry Officer and Presenting Officer respectively.\n<\/p>\n
It was further decided that Shri I.C. Jain be placed under suspension
\nforthwith.”\n<\/p>\n
Order placing Jain under suspension is dated October 3, 1992. By order
\ndated April 8, 1993 headquarters of Jain were shifted from Jind to
\nChandigarh and he was informed of this decision of the High Court by
\ncommunication dated May, 8 1993. There is another episode that in spite of
\nthe order Jain did not shift his headquarters from Jind to Chandigarh and
\ndid not vacate the Government accommodation allotted to him at Jind despite
\nvarious directions issued to him in this regard from time to time. This,
\naccording to High Court, constituted an irresponsible behaviour, gross
\nmisconduct, disobedience of me orders and directions of the High Court and
\nhad amounted to acting in a manner unbecoming of a judicial officer, Second
\ncharge sheet dated May 12, 1995 on this account was also served on Jain. We
\nare, however, not concerned with the second charge.\n<\/p>\n
There is no record of ACRs of Jain for the years 1989-90 and 1996-91. For
\nthe year 1991-92 the inspecting judge in the column “net result” recorded
\n“Integrity Doubtful.” As regards “Knowledge of law and procedure,
\nindustrious and promptness of disposal of cases, nature of the officer,
\nwriting of judgments” he gave him “Good B+-“, As regards the attitude of
\nthe officer towards his superiors, subordinates and colleagues it was said
\n“Not what it should be”, and against the column `Behaviour towards members
\nof the Bar and the Public’ remark was “Not Good” Against the column `has he
\nmaintained judicial reputation for honesty and impartiality the inspecting
\njudge recorded: “See note attached.” This note is as under :-\n<\/p>\n
“Note<\/p>\n
This Officer does not enjoy the reputation which a judicial officer is
\nexpected to have. Many complaints regarding his poor reputation were
\nreceived from Advocates and the members of the Bar. There are some
\ncomplaints which now form the subject matter of the disciplinary
\nproceedings against him;\n<\/p>\n
Sd\/- (Inspecting Judge) 251.92.\n<\/p>\n
High Court in its Full Court meeting, however, graded .the officer “C-
\nintegrity Doubtful” and recorded that his knowledge of law and other
\njudicial qualification were just average and that he was not industrious
\nand had not coped effectively with heavy work and was also not prompt in
\nthe disposal of the cases. Full Court said that the officer was not having
\nreputation for integrity arid impartiality and further that his attitude
\ntowards the superior officers etc. and his behaviour towards the members of
\nthe Bar and the public was unsatisfactory. ACR for the year 1991-92 was
\nwritten by the Full Court only on September 20, 1995 as will be presently
\nseen. It was communicated to the officer on September 22, 1995.\n<\/p>\n
Meanwhile a meeting note was prepared by the registry of the High Court in
\nrespect of the retention in service of Jain beyond the age of 55 years. In
\nthis note it was pointed out that the date of birth of Jain was October 7,
\n1940 and he would be attaining the age of 55 years on the afternoon of
\nOctober 6, 1995. His service were terminated w.e.f. December 30, 1986 and
\nhe was reinstated on June 9, 1988 in pursuance to the order of Supreme
\nCourt in Civil Appeal No. 811 of 1988 (arising out of SLP No. 15776 of
\n1986). He was placed under suspension w.e.f. October 3, 1992 in
\ncontemplation of disciplinary proceedings initiated against him which were
\nstill pending. With this note extracts of the relevant rule i.e. clause (d)
\nof Rule 3.26 of the Punjab Civil Services Rules Volume I Part I (as
\napplicable to the sate of Haryana). instructions regarding retention in
\nservice of class I and class II officers beyond the age of 55 years issued
\nby the State of Haryana by its letter dated September 24, 1974 relevant
\nguidelines prescribed by the High Court as contained in its letter dated
\nSeptember 20, 1979 and the precis of the confidential remarks on the work
\nand conduct of the officer, were attached. As per direction of the Chief
\nJustice of he High Court the matter was placed before the Full Court. In
\nthe meeting of the Full Court held on September 20, 1995 consideration of
\nthe case of Jain (under suspension) for his retention in service beyond the
\nage of 55 years was deferred it was resolved to recorded the annual
\nconfidential report of the officer for the year 1991-92 and at the same
\ntime graded it as “C Integrity Doubtful”. Further note was prepared by the
\nRegistry on September 21 , 1995 for consideration of the Full Court meeting
\nto be held on December 12, 1995. In this it was included the remark
\nrecorded by the High Court in me ACR of Jain for the year 1991-92. Full
\nCourt in its meeting on December 12, 1995 resolved to make recommendation
\nto the Haryana Government to retire Jain forthwith by giving him three
\nmonths” pay and allowances in lieu of notice. The resolution of the Full
\nCourt is as under :-\n<\/p>\n
“6. The matter regarding retention in service of Sh. I.C. Jain (under
\nsuspension), a member of the Haryana Superior Judicial Service beyond the
\nage of 55 years was considered along with the note of the Registrar and it
\nwas decided that in light of his annual confidential reports,
\nrecommendation be made to he Haryana Government that he be retired
\nforthwith by giving him three months pay and allowances in lieu of notice
\nas required by the rules as it would be in the public interest to do so.\n<\/p>\n
It was further decided to continue the enquiry against him for the limited
\npurpose for imposing the cut on his retiral benefits.”\n<\/p>\n
Further in its meeting on January 11, 1996 Full Court modified its earlier
\ndecision of December 12, 1995 in the following manner:-\n<\/p>\n
“12. The modification of earlier Full Court decision dated 12 12.1995
\nregarding retention in service beyond the age of 55 years of Sh. Ishwar
\nGhand Jain (under suspension), a member of Haryana Superior Judicial
\nService was taken up along with the report and the earlier Full Court
\ndecision was substituted as indicated below:-\n<\/p>\n
(i) That in light of his annual confidential reports, recommendation be
\nmade to the Haryana Government to retire him forthwith by giving him three
\nmonths pay and allowances in lieu of notice as required by the rules as it
\nwould be in the public interest to do so.\n<\/p>\n
(ii) That in view of the above recommendation, the departmental proceedings
\nagainst shri Ishwar Chand Jain be not proceeded with of the present.\n<\/p>\n
(iii) That in the event of acceptance of above recommendation of this Court
\nby the State Government, the period of suspension of Sh. Ishwar Chand and
\nthe departmental enquiries against him shall be deemed to have been dropped
\nfrom the date of acceptance of the recommendation of this Court regarding
\ncompulsory retirement of Shri Ishwar Chand Jain.”\n<\/p>\n
When the communication was received from the High Court by the State
\nGovernment recommending the pre-mature retirement of the appellant, a
\nletter dated April 2, 1996 was sent to the High Court seeking clarification
\nas to whether a suspended official could be compulsorily retired. High
\nCourt sent its reply on April 16, 1996 stating that the retirement of Jain
\nwas made on the biasis of an overall assessment of the service record as
\nreflected in his confidential reports and not on the basis of the
\ndepartmental inquiry. Thereafter State Government issued letter dated May
\n10, 1996 retiring the appellant. We may reproduce this order, which was
\nimpugned by Jain in the High courts<\/p>\n
“ORDER<\/p>\n
Whereas on the recommendation of he Punjab & Haryana High Court, it has
\nbeen decided by the State Government to retire sh. Ishwar Chand Jain, a
\nmember of the Haryana Superior Judicial Service (under suspension) from
\nservice in public interest.\n<\/p>\n
2. Now, therefore, in terms of the provisions contained in clause (d) of
\nrule 3.26 of Punjab Civil Services Rules, Volume I, Part-I read with clause
\nA(c) of rule 5.32 of Punjab Civil Service Rules, Volume II, as applicable
\nto the Sate of Haryana, the Governor of Haryana hereby orders the
\nretirement of Sh. Ishwar Chand Jain, Additional District & Sessions Judge
\n(under suspension) from service with effect from the date of communication
\nto him of this order on payment of three months salary and allowances in
\nlieu of the period of notice.\n<\/p>\n
Sd\/-<\/p>\n
\n\n(M.C. Gupta) Chief Secretary to\n\nDated Chandigarh                                          Government,\nHaryana\n\n10th May, 1996.\"\n\n<\/pre>\n
We may as well reproduce the relevant the rules mentioned in the order-\n<\/p>\n
“Rule3.26(a)<\/p>\n
Except as otherwise provided in other clause of this rule, every Government
\nemployee shall retire from service on the afternoon of the last day of the
\nmonth in which he attains the age of fifty-eight years. He must not be
\nretained in service after the age of compulsbry retirement except in
\nexceptional circumstances with the sanction of the competent authority in
\npubic interest, which must be recorded in writing ;\n<\/p>\n
“Provided that the age of compulsory retirement for the members of the
\nJudicial services and Class IV Government employees shall be sixty years”\n<\/p>\n
XXX                                               XXX\nXXX\n\n<\/pre>\n
(d) The appointing authority shall if it is of the opinion that it is in
\nthe public interest so to do. have the absolute right to retire any
\nGovernment employee, other than Class IV Government employee by giving him
\nnotice of not less than three months in writing or three months” pay arid
\nallowances in lieu of such notice :-\n<\/p>\n
(i) If he is in Class I or Class II service or post arid had entered
\nGovernment service, before attain ing the age of thirty five years, after
\nhe has attained the age of fifty years ; and<\/p>\n
(ii)   (a) If he is Class III service of Post, of<\/p>\n
(b)   If he is Class I or Class It Service or post and entered Government
\nservice after attaining the age of thirty-five years-After he has attained
\nthe age of fifty five years<\/p>\n
“Provided that in the case of a member of the Judicial Service, if he had
\nentered Government service before or after attaining the age of thirty five
\nyears, his case for retention in service beyond the age of fifty-eight
\nyears, shall be considered before he attains such age.\n<\/p>\n
The Government employee would stand retired immediately on payment of three
\nmonths” pay and allowances in lieu of the notice period and will not be in
\nservice thereafter.”\n<\/p>\n
In the Full Court meeting in which decision was taken to make
\nrecommendation for pre-mature retirement of Jain Registry had submitted the
\nprecis of annual confidential remarks on the work and conduct of Jain as
\nunder :-\n<\/p>\n
“(Appointed as AddI, District & Sessions Judge, w.e.f, 2.5.l983 direct
\nrecruit from the Bar).\n<\/p>\n
Year\t\tRemarks by the High<\/p>\n
\t\tCourt<\/p>\n
1983-84\t\tB(Average\/Satisfactory<\/p>\n
(In accordance with the meeting\t1984-85\t`C-Below Average’ decision dated
\n21.3. l985, a recommendation was sent to the Haryana Government for 1985-86
\nNo Scope dispensing with his services arid\t1986-87\tNo Scope Judi. work
\nfrom his court was\t1987-88\tNo Scope also withdrawn.\t1988-89\tB-
\nSatisfaotory 1989-90\tB-Plus (Good)<\/p>\n
(His services were dispensed\t1990-91\tDispensed with<\/p>\n
with vide Haryana Governor’s\t1991-92\tC-Integrity doubtful)<\/p>\n
order dt. 30,1186″\n<\/p>\n
(In view of Supreme Court orders dated 26,5.88 passed in Civil Appeal No.
\n81 ] of 88 arising out of S.L.P. 15776 of S6 Sh. I.C. Jain has been
\nreinstated vide meeting decision dt. 2 638 and posted vide orders dt.
\n3.6.88 at Namaul).\n<\/p>\n
(The Judicial work has been withdrawn vide letter dated 27.4.1992)<\/p>\n
(Placed under suspension vide this Court’s Office order dt. 3.10.1992
\npending departmental inquiry).”\n<\/p>\n
Now we may refer to the article of charges which were subject matters of
\ndepartmental proceedings against Jain and in contemplation of which he was
\nplaced under suspension. There were five charges. First charge was that
\nwhite acting as Motor Accident Claims Tribunal he in a revengeful spirit
\nand with some ulterior motive had initially dismissed the claim petition
\nwhen the petitioner therein did not accept the offer of Jain conveyed to
\nhim through his uncle that if the petitioner promised to pay half the claim
\namount Jain would allow his claim petition in full. However, after two days
\nwhen the petitioner threatened to make complaint against Jain he changed
\nhis decision from dismissal to allowing the petition and awarded Rs. 12,000
\nas compensation. Second charge was that while acting as Additional District
\nand Sessions Judge, Jind changed his judgment with some ulterior motive.
\nThird charge was that without awaiting the orders of the High Court he got
\nshifted his official telephone from office to his residence and got STD
\nfacility thereon, thus committing financial irregularity in an
\nirresponsible manner and being guilty of insubordination. Fourth charge
\nrelated to seven land acquisition cases where it was alleged that with some
\nulterior motive he got deposited an amount of Rs. 2 laces in two banks at
\nDelhi through the decree-holder, who belonged to Jind after obtaining their
\nstatements under the duress. Fifth charge related to the cases conducted by
\nShri K.C. Sharma, advocate, where it was alleged that he had shown
\nvindictiveness and bias mind towards the advocate, which was highly
\nobjectionable and unbecoming of a judicial officer.\n<\/p>\n
On various dates inquiry proceedings were held and ultimately these
\nproceedings came to be dropped. It is not that Jain was in any way
\nresponsible for any delay of inquiry proceedings. In between inquiry
\nofficer had also been changed by the Full Court. The Order by which the
\ninquiry against Jain was dropped is dated February 2, 1996 and we reproduce
\nthe same as under :-\n<\/p>\n
“Enquiry case of Mr. I.C. Jain<\/p>\n
Present : Mr. H.S. Gill, Presenting Officer<\/p>\n
I have been shown the extract from the Confidential proceedings of the
\nmeeting of the Hon’ble Judges held on 11th of January, 1996 at 3.00 p.m.
\nThe proceedings reveal that the Full Court has taken a decision that the
\ndepartmental proceedings against Shri I.C Jain be not proceeded with for
\nthe present. It is in view of the decision first taken by the Full Court
\nthat in light of the annual confidential reports of Shri I.C. Jain,
\nrecommendation should be made to the Haryana Government to retire him
\nforthwith by giving him three months pay and allowances in lieu of notice
\nas required by the rules as it is in public interest to do so. That being
\nthe situation, enquiry against Shri I.C. Jain is dropped for the time being
\nand would be revived if at all required to be so done:\n<\/p>\n
In view of the above, bailable warrants issued against Jai Bhagwan so
\nordered on 10th of January, 1996, are recalled.\n<\/p>\n
Sd\/. (V.K.Bali,J)<\/p>\n
February 2, 1996 Inquiring Authority.\n<\/p>\n
By order dated May 29, 1996 suspension of Jain was also invoked. This order
\nis as under :-\n<\/p>\n
“ORDER Dated, Chandigarh the 29.5.1996<\/p>\n
In supersession of this Court’s order dated 3.10.92 placing Shri I.C. Jain,
\na member of Haryana Superior Judicial Services under suspension, Hon’ble
\nthe Acting Chief Justice and Judges have been pleased to revoke the said
\nsuspension order and to re-instate Shri I.C. Jain in service from the date
\nof acceptance of the recommendation of this Court regarding the compulsory
\nretirement Their Lordships have further been placed to order that his
\nperiod Of suspension be treated as spent on duty.\n<\/p>\n
BY ORDER OF HON”BLE THE ACTING CHIEF JUSTICE AND JUDGES.\n<\/p>\n
Sd\/-. B.L. Gulati REGISTRAR”\n<\/p>\n
Jain also represented against adverse entries in his ACRs. First he wanted
\ncertain records which was the basis of recording of adverse entries against
\nhim. He was informed that his request for supply of some documents had been
\ndeclined by the Chief Justice. It was pointed out to us that against
\nrecording of the adverse entries of the year 1991-92 Jain filed another
\nwrit petition in the High Court which is perhaps still pending.\n<\/p>\n
We have reproduced the note attached to the ACR of Jain for the year
\n1991-92 prepared by the inspecting judge which is dated February 25, 1992.
\nIt is submitted before us (and there is no challenge to that) that the
\ninspecting judge himself visited Jind only on March 16\/17, 1992, That being
\nso representations made to the inspecting judge at Chandigarh must have
\nbeen received in writing and if orally then at least the names of the
\nadvocate, who came to Chandigarh, could have been mentioned and informed to
\nJain but this was not done.\n<\/p>\n
Jain challenged his pre-mature retirement on the ground that the action of
\nthe High Court and the Sate Government was arbitrary, malice in law and was
\nin violation of the Punjab Civil Service Rules as applicable to Class I
\nofficers. He also pleaded that the impugned rule was ultra vires Articles
\n14 and 16 of the Constitution inasmuch as it did not prescribe the minimum
\nservice which an officer must render before he could be retired from
\nservice pre-maturely. Then there was a challenge to pre-mature retirement
\non the ground that it was violative of Article 311 of the Constitution as
\npre-mature retirement is punitive in character. High Court did not go into
\nthe question if the impugned rule 3.26(d) of the Punjab Civil Services
\nRules was violative of Articles 14 and 16 of the Constitution and also that
\nin any case the Rule was violated inasmuch as on account of non-payment of
\nthree months” pay and allowances to Jain. In the writ petition Jain had
\nsought setting aside (i) adverse entries in the ACR against him for the
\nyear 1991-92, and (2) decision of the High Court taken in its Full Court
\nmeeting on December 12, 1995 recommending pre-mature retirement of Jain and
\nconsequently the impugned order dated May 10, 1995 of the State Government
\npre-maturely retiring him, he being a member of Haryana Superior Judicial
\nService.\n<\/p>\n
A Division Bench of the High Court speaking through G.S. Singhvi, J., in
\nits well considered judgment, which is now impugned before us, set aside
\nthe order of pre-mature retirement of Jain on the ground that no inquiry
\nconsistent with Article 311, Haryana Civil Services (Punishment and Appeal)
\nRules, 1970 and principles of natural justice, had been conducted against
\nhim. It came to the conclusion that the decision to retire Jain was founded
\non the allegation of misconduct which was subject-matter of inquiry and
\nformed the basis of adverse remarks made by the inspecting judge and the
\nFull Court. Then it proceeded to hold as under :-\n<\/p>\n
“We do find some substance in the argument of Shri Jain that the rejection
\nof his representation against the adverse remarks does not satisfy the test
\nof fairness because no reasons have been recorded by the High Court for not
\naccepting the points and contentions raised in the representation and the
\nrecord also does not show the existence of such reasons, we do not want to
\nexpress any conclusive opinion on this issue because even after
\ninvalidation of the pre-mature retirement of the petitioner, the
\ndepartmental inquiries can be continued and the fate of the remarks made in
\nhis ACR of 1991-92 will ultimately depend on whether the Court upholds the
\nallegations levelled against the petitioner,<\/p>\n
The issue regarding claim of the petitioner for grant of selection grade
\nand other benefits will also be dependent on the final conclusion of the
\ndepartmental inquiries which may be continued against the petitioner in
\nview of the quashing of order of pre-mature retirement. Therefore, we do
\nnot want to entertain his claim for grant of selection grade at this stage.\n<\/p>\n
For the reasons mentioned above, the writ petition is allowed. The pre-
\nmature retirement of the petitioner brought about vide order dated
\n10.5.1996 is declared illegal and the said order is quashed. The petitioner
\nshall get consequential benefits. However, we make it clear that the
\ncompetent authority shall be entitled to revive the proceedings of
\ninquiries and take appropriate decision in accordance with.”\n<\/p>\n
The foremost question arising for our consideration is if the order of pre-
\nmature retirement of Jain is based on sound legal principles and is not
\npunitive in nature. Further question connected with this would be if
\nrecording of adverse remarks in the ACR for the year 1991-92 is justified
\nin the circumstances and whether the Full Court was misled by the precis of
\nACR prepared by the Registry for the meeting of the Full Court held on
\nDecember 12,1995.\n<\/p>\n
In Shyam Lal V. The State of Uttar Pradesh, [1995] 1 SCR 26, the appellant
\nwas compulsorily retired under the provisions of Article 465-A of Civil
\nService Regulations. Note 1 to Article 465-A provides that the Government
\nretains the absolute right to retire any Government servant after he has
\ncompleted 25 years of qualifying service without giving any reasons and
\nthat this right will not be exercised except when it is in the public
\ninterest to dispense with the services of an officer. This Court said that
\nthe two requirements for compulsory retirement were that the officer had
\ncompleted 25 years of service and that it was in public interest to
\ndispense with his further services. Then the Court added: “it is true that
\nthis power of compulsory retirement may be used when the authority
\nexercising this power cannot substantiate the misconduct which may be the
\nreal cause for taking the action but what is important to note is that the
\ndirections in the last sentence in Note 1 to article 465-A make it
\nabundantly clear that an imputation or charge is not in terms made a
\ncondition for the exercise of the power In other words, a compulsory
\nretirement has no stigma or implication of misbehaviour or incapacity.”\n<\/p>\n
In Ram Ekbal Sharma v. State of Bihar and another, [1990] 3 SCC 504, it was
\nlaid down that court can lift the veil of an innocuous order in appropriate
\ncases to find the real basis of the order of compulsory retirement of an
\nofficer. This is how the Court said :-\n<\/p>\n
“On a consideration of the above decisions the legal position that now
\nemerges is that even though the order of compulsory retirement is couched
\nin innocuous language without making any imputations against the government
\nservant who is directed to be compulsorily retired from service, the court,
\nif challenged, in appropriate cases can lift the veil to find out whether
\nthe order is based on any misconduct of the government servant concerned or
\nthe order has been made bona fide and not with any oblique or extraneous
\npurposes. Mere form of the order in such cases cannot deter the court from
\ndelving into the basis of the order if the order in question is challenged
\nby the concerned government servant as has been held by this Court in Anoop
\nJaiswal case [1984] 2 SCC 369.\n<\/p>\n
In Anoop Jaiswal v. Government of India,<\/a> [1984] 2 SCC 369, this Court said
\n:-\n<\/p>\n
“It is, therefore, now well settled that where the form of the order is
\nmerely a camouflage for an order of dismissal for misconduct it is always
\nopen to the court before which the order is challenged to go behind the
\nform and ascertain the true character of the order. If the court holds that
\nthe order though in the form is merely a determination of employment is in
\nreality a clock for an order of punishment, the court would not be
\ndebarred, merely because of the form of the order, in giving effect to the
\nrights conferred by law upon the employee.”\n<\/p>\n
In Baikuntha Nath Das and another v. Chief District Medical Officer
\nBaripada and another, [1992] 2 SCC 299 this Court laid the following
\nprinciples, which a Court has to keep in mind while considering the
\nquestion of compulsory retirement :-\n<\/p>\n
“34. The following principles emerge from the above discussion :\n<\/p>\n
(i) An order of compulsory retirement is not a punishment. It implies no
\nstigma nor any suggestion of misbehaviour,<\/p>\n
(ii)   The order has to be passed by the government on forming the opinion
\nthat it is in  the public interest to retire a government  servant
\ncompulsorily. The order is passed on the subjective satisfaction of the
\ngovernment.\n<\/p>\n
(iii) Principles of natural justice have no place in the context of an
\norder of compulsory retirement. This does not mean that judicial scrutiny
\nis excluded altogether. While the High Court or this Court would not
\nexamine the matter as an appellate court, they may interfere if they are
\nsatisfied that the order is passed (a) mala fide or (b) that it is based on
\nno evidence or (c) that it is arbitrary-in the sense that no reasonable
\nperson would form the requisite opinion on the given material; is short, if
\nit is found to be a perverse order.\n<\/p>\n
(iv) The government (or the Review Committee, as the case may be) shall
\nhave to consider the entire record of service before taking a decision in
\nthe matter – of course attaching more importance to record of and
\nperformance during the later years. The record to be so considered would
\nnaturally include the entries in the confidential records\/character rolls,
\nboth favourable and adverse. If a government servant is promoted to a
\nhigher post notwithstanding the adverse remarks, such remarks lose their
\nsting, more so if the promotion is based upon merit (selection) and not
\nupon seniority.\n<\/p>\n
(v) An order of compulsory retirement is not liable to be quashed by a
\nCourt merely on the showing that while passing it uncommunicated adverse
\nremarks were also taken into consideration. That circumstance by itself
\ncannot be a basis for interference.\n<\/p>\n
Interference is permissible only on the grounds mentioned in (iii) above.”\n<\/p>\n
In State of U.P. and another v. Abhai Kishore Masta, [1995] I SCC 336 this
\nCourt relied on its earlier decision in Baikuntha Nath Doss case [1992] 2
\nSCC 299. It was observed that it cannot be said as a matter of law nor can
\nit be said as an invariable rule, that any and every order of compulsory
\nretirement during the pendency of disciplinary proceedings is necessarily
\npenal. It may be or it may be not. It is a matter to be decided on a
\nverification of the relevant record or the material on which the order is
\nbased.\n<\/p>\n
In a recent judgment in Madan Mohan Choudhary v. The State of Bihar and
\nothers, JT (1999) 1 SC 459 this Court was considering the order of
\ncompulsory retirement of the appellant, who was a member of superior
\njudicial service in the State of Bihar. On a writ petition filed by the
\nappellant in the High Court challenging his order of compulsory retirement
\nby the Full Court of the High Court, the High Court on the judicial side
\nrefused to interfere and dismissed the petition. The appellant came in
\nappeal before this Court. This Court found that while on various earlier
\noccasions remarks were given by the High Court but there were no entries in
\nthe character roll of the appellant for the years 1991-92, 1992-93 and
\n1993-94. The entries for these years were recorded at one time
\nsimultaneously and the appellant was categorized as “C” Grade Officer. The
\ndate on which these entries were made was not indicated either in the
\noriginal record or in the counter affidavit filed by the respondent. These
\nwere communicated to the appellant on 29.11.1996 and were considered by the
\nFull Court on 30.11.1996. It was clear that these entries were recorded at
\na stage when the Standing Committee had already made up its mind to
\ncompulsorily retire the appellant from service as it had directed the
\noffice on 6.11.1996 to put up a note for compulsory retirement of the
\nappellant. This Court held that it was a case where mere was no material on
\nthe basis of which an opinion could have been reasonably formed that it
\nwould be in the public interest to retire the appellant from service pre-
\nmaturely. This .Court was of the opinion that the entries recorded “at one
\ngo” for three years, namely, 1991-92, 1992-93 and 1993-94 could hardly have
\nbeen taken into consideration. The Court then referred to its earlier
\ndecision in Registrar, High Court of Madras v. R. Rajiah, JT<\/a>(1988)2 SC 567
\nWhere this Court said that the. High Court in its administrative
\njurisdiction has the power to recommend compulsory retirement of the member
\nof the judicial service in accordance with the rules framed in that regard
\nbut it cannot act arbitrarily and there has to be material to come to a
\ndecision to compulsorily retire the officer. In that case it was also
\npointed out that the High Court while exercising its power of control over
\nthe subordinate judiciary is under a constitutional obligation to guide and
\nprotect judicial officers from being harassed or annoyed by trifling
\ncomplaints relating to judicial orders so that the officers may discharge
\ntheir duties honestly and independently unconcerned by the ill-conceived or
\nmotivated complaints, made by unscrupulous lawyers and litigants.\n<\/p>\n
Keeping in view the aforesaid principles we may examine the background
\nunder which the order Compulsorily retiring Jain came to be passed. In
\nDecember, 1995 judges comprising the Full Court were not the same as that
\nin the year 1985 when probation of Jain was terminated. There were hew
\nappointments of judges and there were judges, who had come on transfer from
\nother High Courts. They could not be aware of the circumstances leading to
\ntermination of the probation of Jain and ACR given to him for the year
\n1984-985. In the precis of the ACRs for the Full Court ACR given to Jain
\nFor the year 1984-85 was Shown as “C-Below Average.” The inspecting judge
\nfor the year 1984-85 had graded the officer as “B+Good” but the Full Court
\nmodified me same to “C-Below Average.”” This Court in earlier appeal filed
\nby Jain against termination of his probation held that the modification of
\nthe entry by the High Court was without any material and was not
\nsustainable in law. It meant that the Supreme Court restored the grading of
\nJain in his ACR for the year 1984-85 as “B+Good.” There is no indication of
\nthis in the precis prepared by the Registry which certainly would have
\nmisled many of the judges Of the Full Court. There is no ACR recorded for
\nthe years 1992-93, 1993-94, 1994-95 and for nine months of 1995-96 when the
\nFull Court met on December 12, 1995. In its earlier meeting on September
\n22, 1995 it recorded ACR for the year 1991-92 grading Jain as “C-integrity
\ndoubtful.” In coming to this conclusion Full Court relied on the inspection
\nreport prepared by the inspecting judge on February 22,1992 where he graded
\nJain as “integrity doubtful” and gave his note which we have quoted above.
\nThere is no material forthcoming as to why the inspection report of
\nFebruary 1992 came to be considered by the Full Court in September, 1995
\nand why there could be no inspection from that year till holding of the
\nFull Court meeting. Inspection note by the inspecting judge gives an
\nimpression that he inspected the Court of Jain and visited the bar room
\nbefore he gave his report. Fact, however, remains thai the inspecting judge
\ninspected the Court of Jaih only in March, 1992. Inspecting judge also
\nnoted that there were some complaints which formed the subject-matter of
\nthe disciplinary proceedings against him. This also does not appear to be
\ncorrect inasmuch as on the date of the inspection report no disciplinary
\nproceedings were pending against Jain. There were also no particulars of
\nthe complaints whether these were in writing or oral and if these related
\nto the judicial work performed by the officer. At least some of the cases
\nin which Jain was found to have acted improperly could have been mentioned
\nwhen there were many complaints from me members of the Bar, The inspection
\nnote is certainly flawed and could not have formed the basis by the Full
\nCourt to record that integrity of the officer was doubtful and to grade him
\n“C”. Moreover we were told at the bar and it was not contradicted that the
\nInspecting Judge took charge of Jind district only on November 21; 1991 and
\nwithin three months, i.e., on February 25, 1992 gave his inspection report.
\nThis is certainly not satisfactory. The ACR for the year 1991-92 is,
\ntherefore to be kept aside. That being the position if we now refer to the
\nprecis of the ACRs of Jain there were only four ACRs and these are for the
\nyears 1983-84 (B-Average\/satistactory), 1984-85 (B+Good), 1988-89 (B-
\nSatisftctory) and 1989-90 (B+good)). On the basis of these ACRs it is
\ndifficult to hold that the recommendation of the High Court could be
\njustified under clause (c) of third principle laid in Baikunth Nath Das
\ncase.\n<\/p>\n
From the resolutions of the Full Court of December 12,1995 and January 11,
\n1996 it is apparent that Jain was retired while under suspension. It
\nappears that the High Court on its administrative side decided to keep
\ndisciplinary proceedings against Jain pending for the purpose of imposing
\nthe cut on his retiral benefits. The conclusion is obvious that action of
\nthe High Court in retiring Jain was based on the allegation of misconduct,
\nwhich was subject matter of the inquiry before a Judge of the High Court
\nand which appears to us to be the basis for recording of adverse remarks by
\nthe High Court in the ACR of the officer for the year 1991 -92. There is
\nsubstance in the argument of Mr. M.N. Krishanamani, learned counsel for
\nJain, that the High Court found a short cut to remove Jain from service
\nwhen the order of retirement was based on the charges of misconduct,
\nsubject matter of me inquiry. We agree with Mr. Krishnamani that the
\nimpugned order of compulsbrily retiring Jain though innocuously worded is
\nin fact an order of his removal from service and cannot be sustained. High
\nCourt on its judicial side was correct in setting aside the order
\ncompulsorily retiring Jain and allowing the writ petition of Jain to the
\nextent mentioned in the impugned judgment. In this view of the matter it is
\nnot necessary for us to consider other submissions made before us if Jain
\ncould at all have been compulsorily retired under Rule. 3.26 of the Punjab
\nCivil Service Rules, Volume I, Part 1, being a member of the superior
\njudicial service.\n<\/p>\n
Though in Baikuntha Nath Das case [1992] 2 SCC299 this Court has laid
\nprinciples when there is challenge to compulsory retirement of an officer.
\nIn that case the appellant was not a judicial officer. In the case where
\nFull Court of the High Court recommends compulsory retirement of an officer
\nHigh Court On judicial side has to exercise great circumspection in setting
\naside that order. Here it is complement of all the judges of the High
\nCourt, who go into the question. It may hot be possible that in all cases
\nevidence would be forthcoming about the doubtful integrity of a judicial
\nofficer and at times Full Court has to act on the collective wisdom of all
\nthe judges.\n<\/p>\n
Since late this Court is watching the specter of either judicial officers
\nor the High Courts coming to this Court when there is an order pe-maturely
\nretiring a judicial officer. Under Article 235 of the Constitution High
\nCourt exercises complete control over subordinate courts which include
\nDistrict Courts. Inspection of the subordinate courts is one of the most
\nimportant functions which High Court performs for control over the
\nsubordinate courts. Object of such inspection is for the purpose of
\nassessment of the work performed by the subordinate judge, his capability,
\nintegrity and competency. Since judges are human beings and also prone to
\nall the human failings inspection provides an opportunity for pointing out
\nmistakes so that they are avoided in future and deficiencies, if any, in
\nthe Working of the subordinate court, remedied, inspection should act as a
\ncatalyst in inspiring subordinate judges to give best results. They should
\nfeel a sense of achievement. They need encouragement. They work under great
\nstress and man the courts while working under great discomfort and
\nhardships. A satisfactory judicial system depends largely on the
\nsatisfactory functioning of courts at grass root level. Remarks recorded by
\nthe inspecting judge are normally endorsed by the Full Court and become
\npart of the Annual Confidential Reports and are foundations on which the
\ncareer of judicial officer is made or marred. Inspection of subordinate
\ncourt is thus of vital importance. It has to be both effective and
\nproductive. It can be so only if it is well regulated and is workman like.
\nInspection of subordinate courts is not a one day or an hour or few minutes
\naffair. It has to go on all the year round by monitoring the work of the
\nCourt by the inspecting judge. The casual inspection can hardly be
\nbeneficial to a judicial system. It does more harms than good. As noticed
\nin the case of R. Rajiah, JT (1988) 2 SC 567 there could be ill conceived
\nor motivated complaints. Rumour mongering is to be avoided at all costs as
\nit seriously jeopardizes the efficient working of the subordinate courts.
\nTime has come that a proper and uniform system of inspection of subordinate
\ncourts should be devised by the High Courts. In fact the whole system of
\ninspection need rationalization. There should be some scope of self-
\nassessment by the officer concerned. We are informed that the First
\nNational Judicial Pay Commission is also looking into the matter. This
\nsubject, however, can be well considered in a Chief Justices” Conference as
\nHigh Court itself can devise an effective system of inspection of the
\nsubordinate courts. Registrar General shall place a copy of this judgment
\nbefore the Hon’ble Chief Justice of India for him to consider if method of
\ninspection of subordinate courts could be matter of agenda for the Chief
\nJustices’ Conference.\n<\/p>\n
With these observations these appeals are dismissed. There shall be no
\norder as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India High Court Of Punjab And Haryana … vs Ishwar Chand Jain And Anr. Etc on 26 April, 1999 Bench: D.P. Waphwa, K Santosh Hegde CASE NO.: Appeal (civil) 2465 of 1999 PETITIONER: HIGH COURT OF PUNJAB AND HARYANA THROUGH R.G. RESPONDENT: ISHWAR CHAND JAIN AND ANR. ETC. DATE OF JUDGMENT: 26\/04\/1999 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-55549","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHigh Court Of Punjab And Haryana ... vs Ishwar Chand Jain And Anr. 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