THE HONOURABLE THE ACTING CHIEF JUSTICE In this Writ Petition, the petitioner, a Civil Judge (Junior Division), has challenged G.O.(2D).No.806, dated 3.12.2007 issued by Home (Courts-1) Department, Government of Tamil Nadu, whereby he has been compulsorily retired from service under Fundamental Rule 56(2) (for short, "FR.56(2)") on the recommendation of the Full Court of this Court. In view of the aforesaid order of compulsory retirement, the order of suspension has also been revoked.
2. The petitioner was appointed as Civil Judge (Junior Division) on 10.12.1999 and posted as Additional District Munsif and served at different places. While he was functioning as Principal District Munsif-cum-Judicial Magistrate-I, Cheyyar, on 1.7.2003, during a surprise visit made by the Principal District Judge, Tiruvannamalai, 13 unfilled remand warrants signed by the Magistrate and 7 unfilled bail bonds signed by the petitioner-Magistrate, were seized from the almirah (cupboard) of the petitioner's Head Clerk. The said Head Clerk was asked to submit explanation by the Principal District, Judge. As the Principal District Judge was not satisfied with the explanation, departmental proceedings were initiated against the Head Clerk by framing charges against the Head Clerk, under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules on 24.9.2003 and on enquiry conducted by the District Munsif, Arni, it was held that the charges were not made out against the Head Clerk.
3. In regard to the said incident, a report dated 2.7.2003 was forwarded by the Principal District Judge, Tiruvannamalai to this Court, whereinafter, the petitioner was asked to submit explanation on 4.5.2006. As the explanation submitted was not satisfied, this Court, on the Administrative Side, ordered to place him under suspension in contemplation of the departmental proceedings. Charge proceedings were issued on 9.6.2007, to which the petitioner submitted written statement of defence on 2.7.2007. The explanation by way of written statement was considered by the Administrative Committee of this Court, which ordered to proceed with the enquiry, on 18.7.2007, pursuant to which, the Principal District Judge, Villupuram, started enquiry.
4. While the proceedings were going on, cases of Judicial Officers, which were ripe for review under F.R.56(2) on attaining the age of 50 years, were considered by the Administrative Committee of this Court. The Administrative Committee of this Court, having noticed the records of service of different officers, while allowing four Officers to continue in service, so far as the petitioner is concerned, in its meeting held on 4.10.2007, recommended to compulsorily retire the petitioner from service under F.R.56(2). The recommendation along with the other records of all the officers, i.e. those who are allowed to continue and the petitioner, were placed before the Full Court of this Court, which in its meeting held on 29.10.2007, decided as follows:
"Considered. It is resolved to accept the decision of the Administrative Committee."
On approval of the Full Court, the Government of Tamil Nadu, being the appointing authority of the writ petitioner, was addressed by this Court, vide letter dated 31.10.2007, pursuant to which, the impugned G.O.(2D).No.806, Home (Courts-1) Department, dated 3.12.2007 was issued. The petitioner was relieved from services on 18.12.2007, after payment of three months' salary.
5. From the counter affidavit filed by first respondent-Registrar General of this Court, it appears that the petitioner filed a Review Petition on 4.1.2008, which had been forwarded on 11.1.2008 to the State Government by this Court through its Administrative Side. The State Government, in their letter dated 22.2.2008, have sought for remarks of this Court. In the meanwhile, the Writ Petition was preferred.
6. Learned counsel for the petitioner submitted that F.R.56(2) was made as a tool to compulsorily retire the petitioner and it is a short-cut method to avoid departmental enquiry. In fact, the background for such retirement is disciplinary proceedings as was initiated and pending against the petitioner since 2006. According to the learned counsel appearing for the petitioner, the compulsory retirement is by way of punishment, without affording proper to the petitioner. Learned counsel also placed reliance on the decisions of the Supreme Court.
7. It has been brought on record all the facts including the fact relating to the departmental proceedings. They were highlighted by learned Senior Counsel appearing on behalf of first respondent, who submitted that the petitioner has been compulsorily retired from service at the time of assessment of the records of Judicial Officers who attained the age of 50 years and the decision had been passed on the basis of the records without being influenced by the pending proceedings. Learned Senior Counsel appearing for the first respondent also relied on the decisions of the Supreme Court.
8. We have heard the learned counsel appearing for the parties and noticed the rival contentions. On the direction of the Court original records/reports relating to the proceedings, etc., were produced. Before looking into the records, it is desirable to notice the ratio laid down by the Supreme Court in regard to compulsory retirement.
9. In the case of "Baikuntha Nath Das vs. The Chief District Medical Officer, Baripada" reported in AIR 1992 SC 1020, the Supreme Court held that uncommunicated adverse remarks can be considered for compulsory retirement and that the circumstances by itself cannot be the basis for interference, because, the principles of natural justice have no place in the context of an order of compulsory retirement. The nature of function to compulsorily 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.
10. So far as adverse entries in the confidential reports, are 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 the Supreme Court in the case of "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 required 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 the petitioner is concerned, what has been brought on record is the ACR of the petitioner of different periods and not the PCR and therefore, the argument as advanced by learned counsel for the petitioner that specific incidents should have been mentioned in the ACR or that he should have been given opportunity, cannot be accepted and such submission is rejected.
11. The validity of compulsory retirement, when fell for consideration before the Supreme Court in the case of "State of Gujarat vs. Umedbhai M.Patel" reported in 2001 (3) SCC 314 = 2001 (II) LLJ 1140, the Supreme Court noticed earlier decision rendered in the case of "State of Orissa vs. Ram Chandra Das" reported in 1996 (5) SCC 331, wherein the 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."
At paragraph 11 of the judgment in the case of "Umedhbhai 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 331 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. F.R.56(c) of the U.P. Fundamental Rules, which provides for compulsory retirement of a Government servant and similar to F.R.56(2) of the Tamil Nadu Fundamental Rules, fell for consideration before the Supreme Court in the case of "State of U.P. and others vs. Vijay Kumar Jain" reported in 2002 (3) SCC 641. Referring earlier decisions in the case of "Shyamlal vs. State of U.P." reported in AIR 1954 SC 369, it was held that an order compulsory retirement is neither a punishment nor is any stigma attached to it.
13. 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. F.R.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 exception 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."
14. From the records of the petitioner, as was produced by first respondent, it will be evident that number of times, adverse remarks were recorded against the petitioner by the immediate controlling Officer/Principal District Judge and communicated to him particularly with regard to his reputation, i.e. honesty and integrity, which were not altered by the Portfolio Judge of this Court, who ordered to improve. Some of them are quoted hereunder:
For the period from 1.1.2000 to 11.8.2000:
I.Supervision and control:
15. Those adverse remarks were communicated to the petitioner and subsequently they have reached finality. From the adverse remarks communicated, it will be evident that not only the supervision and control towards subordinates and colleagues, conduct and dignity-inside and outside the Court, outlook towards the members of the Bar and public, are poor, but also the reputation as to the honesty, integrity and impartiality and the over-all view of the Officer for the aforesaid years, as written by the Controlling Officer, as was accepted by the Portfolio Judge, who ordered to improve, which reached finality, disclose the nature of the Officer.
16. So far as the departmental enquiry is concerned, we find that the Administrative Committee/Full Court of this Court had not taken into consideration the charge as contained in the said proceedings except that the petitioner was under suspension and the proceedings were pending. It is not that the individual case of the petitioner was only considered under F.R.56(2), but also the cases of all the other Officers in the Judicial Service who attained the age of 50 years, review of which is being done every year with regard to all such Officers. Taking into consideration the records of service, while the Administrative Committee of this Court allowed the other Judicial Officers to continue, it recommended to compulsorily retire the petitioner from service, which was accepted and recommended by the Full Court and finally accepted by the State Government, which issued the impugned G.O.(2D).No.806, Home (Courts-I) Department, dated 3.12.2007.
17. Thus, we come to a definite conclusion that the order of compulsory retirement of the petitioner was just and proper, the same being in accordance with law.
18. In view of the persuasion of the learned counsel appearing for the petitioner, we have also called for and gone through the records of the departmental proceedings. From the records/departmental proceedings, we find that the petitioner was charge-sheeted for the allegation that while he was functioning as Principal District Munsif-cum-Judicial Magistrate-I, Cheyyar, used to put signature in the blank remand and warrant forms and bail order forms and hand over them to Head Clerk, so that the blank forms could be used in the absence of the petitioner from the Headquarters during the weekends and on 1.7.2003 at 4.00 p.m., the then Principal District Judge, Tiruvannamalai, when made a surprise check of the room of the Headclerk Mr.Ragunathan in the Office of the Principal District Munsif-cum-Judicial Magistrate-I, Cheyyar, seized such 13 blank remand warrant forms and 7 blank bail order forms signed by the petitioner from the steel almirah (cupboard). When the petitioner was questioned by the District Judge, Tiruvannamalai of the seizure of the blank forms, he informed the District Judge that he (petitioner) handed over those signed blank forms to the Headclerk so that they could be used when need arose at the weekends at the time petitioner would be out of station. This was alleged to be commission of acts of serious misconduct, misuse and abuse of power, dereliction of duty and unbecoming of a Judicial Officer. Mr.N.Retnaraj, Principal District Judge, Villupuram, District, Villupuram was appointed as Enquiry Officer. By the time the Administrative Committee and the Full Court of this Court had taken decision to compulsorily retire the petitioner from service under F.R.56(2) in October 2007, the Enquiry Officer had not submitted any report. Subsequently, the Enquiry Officer sent the report dated 27.11.2007 to this Court. From the said report dated 27.11.2007, we find that on the basis of over-all evidence, both oral and documentary, and giving opportunity to the petitioner, the charge has been proved against the petitioner-delinquent officer. We are not expressing any opinion on the question as to what order would have been passed by this Court in the departmental proceedings, if the petitioner would not have been compulsorily retired from service.
19. We find no merits in the Writ Petition, which is accordingly dismissed, but there shall be no order as to costs. The Miscellaneous Petitions are closed.
cs To
1. The Registrar General, High Court of Madras, Chennai-104.
2. The Government of Tamil Nadu, rep. by its Secretary, Home (Courts-I) Department, Secretariat, Chennai 600 009