P. Ramaraj Vs The Registrar General, High Court of Madras and The Government of Tamil Nadu

@JUDGMENTTAG-ORDER

S.J. Mukhopadhaya, J.@mdashThe petitioner, who was in the Tamil Nadu State Judicial Service as Civil Judge (Jr. Division), having compulsorily retired under Fundamental Rules 56(2) (hereinafter referred to as ''FR'' for short) has challenged the order contained in G.O. 2 (D) No. 457 dated 13th July, 2007, issued from Home (Cts. IA) Department, Government of Tamil Nadu.

2. According to the petitioner, he was appointed as Judicial Magistrate on 2nd March, 1998 and was discharging his judicial duties to the best of his ability with due diligence and care to the satisfaction of his superiors. While he was functioning as Judicial Magistrate at Thiruthuraipoondi, the Vedaranyam Police Station filed charge sheet against one Mr. Rajagopal and others u/s 302 IPC. On a perusal of the case papers as he found that no murder had taken place, he returned the charge sheet making query as to how Section 302 IPC was invoked in that case in absence of murder. It is alleged that on the same day, the authorities altered the section and filed charge sheet u/s 307 IPC. So he called for the entire case diary and charge was shown u/s 506(2) on the basis of the opinion given by ADP, APP-I. When the case was listed for trial, the District Judge rang up and told him to take evidence in favour of Rajagopal, but he declined, which infuriated the District Judge, who wanted to take revenge against him and for not acting on his word, he instigated one Ragupathi, an advocate of Mr. Rajagopal and the APP to file complaint against him.

The petitioner further alleged that in another case involving one Kulandaivelu (A-1) in crime Nos. 501/92 and 499/92, registered by the Vedaranyam Police Station and investigated by the CB-CID for an offence u/s 302 IPC, charge sheet was filed as back as in 1994. However, as the said accused happened to be an influential person belonging to a particular community and the Union Chairman of Vedaranyam for a long period, he was evading the process of the court by filing petition u/s 317 Cr.P.C., due to which committal proceedings were dragging on and after perusing the case bundle, the petitioner took effective steps for the appearance of the accused by dismissing the petition filed u/s 317 Cr.P.C. and issued warrant. The accused was forced to appear before the court and so some of the advocates belonging to the same community at Thiruthuraipoondi did not like the above step taken by the petitioner as also the people belonging to the same community, who were running shrimp farms in Mangrove forest area, Muthupettai. False cases were lodged by the farm owners against poor people and got them registered by police with their economic, political and community influence. Nearly 200 poor people had been implicated in six cases and so after perusing the case bundle the petitioner took cognisance of the cases for offences under various sections, but did not take cognisance u/s 307 IPC and Section 3(1) of TNPPD Act as there was no material available regarding the said section. This enraged the farm owners and advocates belonging to a particular community, who support the farm owners.

The petitioner alleges that the aforesaid issues were the background for which he was placed under suspension vide proceedings ROC No. 873/2003/RG/B3 dated 25th Jan., 2006, which was issued on 26th Jan., 2006, based on the false complaint given by the abovesaid persons. When the order of suspension was sought to be served on him, the District Judge and the Chief Judicial Magistrate came along with two battalions of armed police as if he was an accused of heinous crimes to be arrested. It is unheard of in judicial history in Tamil Nadu. As the petitioner claims to be a member of a particular community, it is alleged that the District Judge and Chief Judicial Magistrate always treated him differently and a Judicial Magistrate facing such problem of caste discrimination after 60 years of independence is unfortunate.

3. Further case of the petitioner is that on 3rd April, 2006, when he was sleeping alone in his quarters, at about 2.30 p.m., a person, armed with knife, trespassed into his quarters and shouted at him as to why he was sitting there as he was not in service and threatened him to vacate and run away from the quarters as otherwise he would kill him. Fearing his life, the petitioner states that he ran away from the quarters towards the Munsif''s Court to take shelter there. However, the person followed him and tried to stab him in the court hall itself. For his self-defence, the petitioner had to take a chair to protect himself. He shouted for help and came out of the quarters and going round in open space in front of his quarters. It is stated that the District Munsif, Thiruthuraipoondi, who was also in-charge of Judicial Magistrate''s court, who was sitting in the quarters adjacent to his quarters watching the incident through his quarters window, but did not come out to help him or to call the police to give him protection. Though a huge crowd around 200 people gathered at the scene of occurrence, but no one attempted to catch the culprit. It is stated that as repairing work was going on in the Judicial Magistrate''s Court, the judicial officer in-charge was sitting only in the District Munsif''s Court discharging the function of Judicial Magistrate and having been chased by aggressor, the petitioner ran for safety to the court hall of the District Munsif about 3.30 p.m., and the culprit followed him armed with knife without any hesitation and continued to attempt to stab. It is further alleged that one person, as mentioned at para-7, entered into the court hall and the petitioner requested him to inform the police, but he did not respond even at that point of time. He was shocked and suffered extreme stress and strain and one advocate, after the occurrence, informed him that the culprit was one Chellapandian from Adirangam village and there were several criminal cases pending against him. It is alleged that the aforesaid fact shows that there was pre-arranged plan for murdering him and the culprit Chellapandian was engaged for the said purpose. At 5.00 p.m., he along with an advocate, went to the police station and lodged a FIR there. A complaint was also forwarded to the Chief Justice on 12th April, 2006, informing about the incidence, but Chellapandian, though was arrested, but not remanded to judicial custody. His arrest was published in the Tamil newspaper on the next day itself and instead of taking action against Chellapandian, a false complaint was given against the petitioner to put him behind the bars.

4. Lots of allegations have been made against one of the District Judge and some others, including Chief Judicial Magistrate, District Munsif, etc., and certain more incidents have been narrated. It appears that based on the report of the District Judge, for certain serious allegations, the petitioner was issued with another charge memo on 24.01.2007, but finally he was compulsorily retired from service by impugned order dated 13th July, 2007.

5. In the writ petition, the petitioner has taken the following grounds to challenge the order of compulsory retirement:

a) The petitioner requested to furnish documents relied upon by the respondents to retire him compulsorily, but such prayer was rejected;

b) Till he was placed under suspension, his performance was excellent and there was nothing adverse against him;

c) There is no public interest involved to compulsorily retire the petitioner from service; and

d) Though departmental proceeding was initiated, but without following the same to its end, the petitioner was compulsorily retired from service.

6. Learned Counsel for the petitioner while made similar submission, also submitted that the impugned order was passed because of mala fide on the part of certain officers. He also placed reliance on one or other judgments of Supreme Court in support of his plea.

Learned Addl. Government Pleader, appearing on behalf of the respondents, while submitted that the order has been passed on the recommendation of the Full Court of the Madras High Court, it was further informed that the matter was earlier taken up, discussed and recommendation was made by the Administrative Committee. Apart from this proceeding, the Registry is not in a position to state the background of compulsory retirement and, therefore, they also produced the original records.

7. We have heard the parties, noticed the rival contentions, perused the original records and the judgments referred to by one or other party.

8. The petitioner in the writ petition mainly alleged mala fide against number of officers of the Tamil Nadu State Judicial Service, including those belonging to superior and subordinate judiciary. Allegations have been made against individual officers, whose names have been shown at different paragraphs. Though we have noticed some of the allegations as made, but deliberately do not give the names of such officers as none of them have been impleaded as party respondent by name. The attitude of the petitioner will be clear from the pleadings. He has made lot of allegations against one or other officer, including the District Judge, Chief Judicial Magistrate, District Munsif, etc., but while making such allegations and pleadings, apart from the fact that the parties have not been impleaded as respondents by name, it has not been pleaded as to whether such statements made are true to his knowledge or information derived from any record. In the aforesaid background, we are not inclined to accept any one or other allegation made by the petitioner against individual officers, but the manner in which such allegation has been made shows the nature of the officer, who could make any sort of allegation without any basis. This is one of the fact we have noticed for determination whether such type of officers should be allowed to continue in the judicial service, even if technically there is any flaw in the proceeding.

9. Learned Counsel for the petitioner relied on the decisions as referred below:

a) In the case of M.S. Bindra Vs. Union of India and Others, , the Supreme Court observed that in the matter of compulsory retirement, for recording doubtful integrity, there requires to be some basis to sustain the inference. This was highlighted by counsel for the petitioner to suggest that there is no basis to sustain any inference against the petitioner about his integrity.

In the case of M.S. Bindra (supra), the Supreme Court noticed that the officer, M.S. Bindra, was enjoying high reputation throughout his service, but suddenly was branded as a person of unreliable integrity and unfit to be entrusted with any position of responsibility in the Government service. Taking into consideration the aforesaid fact, the Supreme Court held that the conclusion drawn were not borne from the available materials. Whether the petitioner could take advantage of such judgment or not, for that we have also looked into his past character role, which we will discuss at the relevant stage.

b) A judicial officer, whose performance and integrity was otherwise reported not bad was compulsorily retired on the basis of a single act of granting anticipatory bail in a criminal case u/s 307 IPC. That was the case of Madan Mohan Choudhary Vs. The State of Bihar, . Having noticed that there was no ulterior motive found in the appellant''s order, the Supreme Court held that compulsory retirement was not warranted and, therefore, set aside the order.

The case of Madan Mohan Choudhary (supra) was strongly relied upon by the counsel for the petitioner, but as it is dependant on the individual facts, we will discuss the case of the petitioner at the relevant stage.

c) In the case of State of Gujarat Vs. Umedbhai M. Patel, , the Supreme Court observed that the order of compulsory retirement under relevant provision should not be punitive in nature, though ordinarily not to be treated as punishment. Entire records of service, including confidential adverse and uncommunicated entries could be considered, but order not to be passed as short-cut to avoid departmental enquiry. In the said case, having noticed the fact, the Supreme Court held that the impugned order of compulsory retirement was not sustainable.

d) Learned Counsel for the petitioner also relied on the case of Chandra Singh Vs. State of Rajasthan and Another, . That was a case in which departmental proceeding was pending enquiry and in absence of a specific provision, the Supreme Court held that an employee cannot be made to retire during pendency of such departmental enquiry.

The aforesaid case was cited to suggest that in view of pendency of departmental proceeding against the petitioner, he could not have been retired from service.

We have noticed the said judgments, wherein the Supreme Court, while making certain observation aforesaid, also held that Article 235 enables the High Court to assess the performance of any judicial officer at any time with a view to discipline the black sheep or weed out the dead wood.

10. There are other decisions of Supreme Court on this issue on which learned Counsel for the petitioner has not relied, but we wish to refer those decisions in the present case.

In the case of Ram Ekbal Sharma v. State of Bihar and Anr. reported in 1990 (2) LLJ 601 ., the Supreme Court decided as to which are the cases where Court could lift the veil of secrecy, if order suggests to be innocuous, but found to have been made for other purpose.

In the case of Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, , while the Supreme Court held that uncommunicated adverse remarks can be considered for compulsory retirement, further held that 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 action has to be taken on the subjective satisfaction of the Government; there is no room for importing the facet of natural justice.

In the said case of Baikuntha Nath Das (supra), 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. Butah Vs. Union of India (UOI) and Others, . Therein, 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.

In the case of State of Orissa and others Vs. Ram Chandra Das, , the Supreme Court held that "the Government is entitled to compulsorily retire a Government servant, in public interest, with a view to improve efficiency of administration or to weed out 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". The said judgment was followed by Supreme Court in the case of Umedbhai M. Patel (supra).

In the case of Allahabad Bank Officers Association and another Vs. Allahabad Bank and others, , 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. The aforesaid judgment was also noticed by the Supreme Court in the case of Umedbhai M. Patel (supra), wherein at para-11 the following principles were summarised:

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.

The case of compulsory retirement of judicial officers fell for consideration before Supreme Court in the case of Nawal Singh Vs. State of U.P. and Another, . Having noticed similar provision like FR 56, 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.

11. In the present case, we have seen the attitude of the petitioner who was a judicial officer who made various allegations against officers without impleading them as party and without any basis, as noticed above. The allegations are not of good taste. One could have understood such allegation if reference of any evidence would have been given or had it been stated that such allegations are true to the knowledge of the petitioner, but the officer did not choose to even say so in the affidavit.

12. From the confidential report of the petitioner for the year 2000, we find adverse remarks made by the Principal District and Sessions Judge, Kanyakumari District @ Nagercoil, which reads as follows:

The High Court Judge, who is the Portfolio Administrative Judge did not differ with such finding. On the other hand, he recorded that there were some complaints against the petitioner.

In the character role of 2002, adverse remarks were recorded as shown hereunder:

The aforesaid remarks were made by Principal and Sessions Judge, Tuticorin District, and were endorsed by the Hon''ble High Court Judge, who was the portfolio Administrative Judge of the district.

13. From the record it appears that the aforesaid adverse remarks were communicated to the petitioner, who made representation against the same. The portfolio Administrative Judge of this Court, on re-appreciation of the judgments, etc., ordered to expunge the adverse remarks recorded against S. No. 1 (c), (d) and (e), i.e., Quality of thought, reasoning and conclusion and S. No. 3 Disposal of old cases, which were accepted. The adverse entries against the rest of the heads, such as "Readiness to take responsibility", "Supervision and Control on office staff", "Attitude towards superiors and colleagues" and "Conduct and Dignity outside Court" were not expunged and representation to such effect was rejected vide official memorandum dated 22nd Jan., 2004.

14. For the year 2004, the following adverse entries were recorded by the District Judge, Cuddalore, which were also endorsed and agreed by the portfolio Administrative Judge of this Court:

As pointed out, the portfolio Administrative Judge of this Court, while agreed with the observation against S. Nos. 7, 8, 9 and 10, also recorded that the officer should also avoid complaints.

15. From the Vigilance record it appears that by the time the officer was compulsorily retired, the following allegations and complaints were made and were pending:

16. From the allegation made by the petitioner and records of service, the following facts emerge:

i) The petitioner has made unnecessary allegations against one or other officer by name in the writ petition, without impleading such officers as party casting stigma on them and nowhere stated that such statements are true to the knowledge of the petitioner or that such statements are based on information derived from record. On the other hand, such allegations, not based on record, reflects the nature of the petitioner;

ii) There are adverse remarks made against the petitioner by the Administrative Officer as also the High Court Judge since the year 2000, but he never improved. Such adverse remarks had been made not by one officer but by different Principal District and Sessions Judges in different Districts such as Kanyakumari, Tuticorin, Cuddalore, etc., as noticed above;

iii) The honesty, integrity and impartiality of the petitioner was stated to be poor or not satisfactory, which means that his honesty, integrity and impartiality were doubted; and

iv) There were various complaints made against the petitioner by different persons, including complaints relating to taking of bribe relating to which matters were pending before High Court apart from a disciplinary proceeding, which was initiated against him.

17. It will be evident from the record that the case of petitioner for continuance in service/compulsory retirement under FR 56 (2) was considered only when he attained the age of 50 years. Prior to attaining the age of 50 years, as the question of compulsory retirement under the said FR 56 (2) was not applicable, there was no occasion for the High Court or the State Government to take any action pursuant to the said provision except to initiate departmental proceeding and to take action, if found to be proved. Therefore, before attaining the age of 50 years, even if departmental proceeding was initiated, but on attaining age of 50 years at the time of assessment of all the officers, who have attained age of 50 years, if the case of the petitioner was also considered, it cannot be held to be illegal.

18. In the case of Umedbhai M. Patel (supra), though the Supreme Court observed that compulsory retirement should not be passed as a short cut to avoid departmental enquiry when such course is more desirable, but there is no prohibition made under any law to stay the consideration of the case for compulsory retirement on attaining 50 years of age, as required under FR 56 (2).

19. From the proceeding of the Administrative Committee dated 3rd April, 2007, it will be evident that in routine manner the case of a number of officers, who attained 50 years of age, were considered under FR 56 (2), as done every year by the Court. The case of the petitioner was considered along with 9 others and while the names of 5 persons were recommended for continuance in service beyond 50 years of age and the case of 3 persons were deferred, name of the petitioner and one other person was not recommended for continuance in service beyond 50 years of age in public interest.

20. It is stated that the petitioner, in normal course, was granted the benefit of Assured Career Progression (ACP), but from the record it appears that such promotion was granted before recording and communicating the last character role for the period 2003-04.

21. There is nothing on the record to suggest that because of mala fide on the part of one or other officer or for wrong placement of any fact the petitioner was compulsorily retired from service. Therefore, the petitioner cannot derive advantage of the judgment made in the case of Umedbhai M. Patel or Madan Mohan Choudhary or M.S. Bindra (supra), which were based on the service record of the respective parties.

22. Apart form the judgments cited above, in a recent case of M.L. Binjolkar Vs. State of Madhya Pradesh, , the Supreme Court held that the order of compulsory retirement is not punishment. Its purpose and object is to weed out the inefficient, corrupt, dishonest and dead wood from Government service.

The case of a judicial officer of Gujarat for extension of his probation period fell for consideration before the Supreme Court in Registrar, High Court of Gujarat and Another Vs. C.G. Sharma, . The service of a probationer was terminated because of adverse remark. Assessment was made on overall performance. The Civil Judge (Sr. Division) and Judicial Magistrate (First Class) was given adverse entries like "not industrious", "less diligent", "below average", "no clarity of thought and action", "conduct suspicious", etc. The Standing Committee of the Gujarat High Court considered not only periodical confidential record, but also the overall performance, including complaints raising doubts about his integrity and having found the performance unsatisfactory, recommended termination of probationary service, which was approved by the Full Court. The Supreme Court, while allowed the appeal preferred by the Gujarat High Court and approved the High Court''s action in terminating the service of such judicial officer, held that while service of such officers are to be terminated, the High Court should protect its honest officers by ignoring ill-conceived and motivated complaints.

Though the aforesaid case relates to extension of probation and not compulsory retirement, but the principle is also applicable, as the question of retention of a judicial officer arises while cases are considered under FR 56 (2).

23. In view of the records of service and other facts as noticed above, we are not inclined to interfere with the impugned order, G.O. 2 (D) No. 457 dated 13th July, 2007, issued from Home (Cts. IA) Department, Government of Tamil Nadu nor inclined to grant relief to the petitioner. There being no merit, the writ petition is dismissed. Consequently, connected miscellaneous petition is also dismissed. But there shall be no order as to costs.