Punjab-Haryana High Court
Chaman Lal Mohal vs High Court Of Punjab & Haryana on 12 July, 2013
Author: Hemant Gupta
Bench: Hemant Gupta, Fateh Deep Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 12.07.2013
CWP No.13720 of 2013
Chaman Lal Mohal ...Petitioner
Versus
High Court of Punjab & Haryana ...Respondent at
Chandigarh & another
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Vipul Jindal, Advocate, for the petitioner.
HEMANT GUPTA, J.
Challenge in the present writ petition is to an order dated 19.02.2013 (Annexure P-1), whereby the petitioner has been prematurely retired from the Haryana Superior Judicial Service on attaining the age of more than 58 years.
The petitioner joined as Subordinate Judge Third Class-cum- Judicial Magistrate Second Class on 30.10.1990. The petitioner was promoted as Additional District & Sessions Judge on 23.02.2008. The grievance of the petitioner is that most of his Annual Confidential Reports (ACRs) are 'B Plus (Good)', but still he has been retired prematurely. It is pointed out that for the year 2010-11, the petitioner was graded 'B Plus Kumar Vimal 2013.07.12 11:05 I attest to the accuracy and integrity of this document Chandigarh CWP No.13720 of 2013 2 (Good)' and against Column No.7 pertaining to 'Integrity', it was recorded that 'no complaint', when posted at Panipat falling in Karnal Sessions Division. On 03.04.2011, he was transferred to Yamuna Nagar, where he has given maximum disposal in terms of cases and units, but the remark recorded is 'B (Integrity doubtful)' though the Administrative Judge of Yamuna Nagar was the same who recorded the remarks as Administrative Judge of Karnal Sessions Division in the year 2010-11. Though the Administrative Judge has granted 'B (Integrity doubtful)', but the Full Court downgraded the ACR with 'C (Integrity Doubtful)'.
It is pointed out that there had not even a single complaint against the petitioner during the year 2011-12 nor any such complaint or any other material or report was ever communicated or put to the petitioner. The petitioner submitted a representation against the adverse remarks recorded by the Administrative Judge and sought the copy of the complaints to enable the petitioner to explain the same. However, the representation was rejected by the High Court on 17.11.2012. The petitioner again submitted representation on 07.12.2012, but the same was again rejected. It is also pointed out that under the Right to Information Act, the petitioner has sought information in respect of complaints received against him, but he was informed that as per record no complaint was received against the petitioner for the period from 01.04.2010 to 31.03.2012.
Before this Court, the petitioner challenged the order of premature retirement on the ground that there is no material or the basis for recording remarks 'integrity doubtful' against the petitioner, which had been made basis for premature retirement of the petitioner. In support of Kumar Vimal 2013.07.12 11:05 I attest to the accuracy and integrity of this document Chandigarh CWP No.13720 of 2013 3 such argument, learned counsel for the petitioner has relied upon the judgments reported as The Registrar, High Court of Madras Vs. R. Rajiah 1988 (3) SCC 211; High Court of Punjab & Haryana Vs. Ishwar Chand 1999 (4) SCC 579; Mahender Pal Vs. Administrator, National Capital Territory of Delhi 2000 (4) SLR 583 (Delhi) and also Single Bench judgment of this in Dewan Chand Vs. Punjab & Haryana High Court & others 2010 (7) SLR 203. Reference has been also made to the Division Bench judgment of this Court in Randhir Singh Vs. Hon'ble High Court of Punjab & Haryana and another 2013 (1) SLR 380.
We have heard learned counsel for the petitioner at length and find no merit in the present writ petition. A perusal of summary of ACRs for the period from 1990-91 to 2010-11 shows that except 'A - very good' and 'A + Outstanding' for the years 1999-2000 and 2000-01 respectively, the reports of the petitioner are 'B Plus (Good)'. However, in respect of some years i.e. 1990-91, 1991-92, 1995-96 & 1996-97, the remarks are 'B (Satisfactory)'. In the ACR for the year 2011-12, which is the basis of premature retirement, a separate note was attached pertaining to 'Integrity'. The said note reads as under:
"Mr. C.L.Mohal, Additional District & Sessions Judge had earlier worked at Panipat, from where he was transferred to Yamuna Nagar. I was Administrative Judge for Karnal Sessions Division including Panipat for the year 2010-11. There were mixed reports about the integrity of the officer, however, giving benefit of doubt, no comments were made in his ACR for the year 2010-11. At the present place of posting, the officer is not enjoying good reputation. In terms of the feedback received from different sources, which are in the same line, integrity of the office cannot be said to be good."Kumar Vimal 2013.07.12 11:05 I attest to the accuracy and integrity of this document Chandigarh CWP No.13720 of 2013 4
The Full Court in its meeting held on 29.01.2013 resolved to record 'C (Integrity doubtful)' and also recommended for premature retirement by giving salary of three months in lieu of notice period.
The issue of premature retirement of a Judicial Officer has been subject matter of examination of the Hon'ble Supreme Court from time to time. One of the comprehensive and latest judgment in this respect is Rajendra Singh Verma (dead) through LRs & others Vs. Lieutenant Governor (NCT of Delhi) & others (2011) 10 SCC 1, wherein the Hon'ble Supreme Court has held that Judicial service is not a service in the sense of an employment, but 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. The Court observed as under:
"81. Judicial service is not a service in the sense of an employment as is commonly understood. 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. There is no manner of doubt that 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."
In another judgment reported as R.C. Chandel Vs. High Court of M.P. (2012) 8 SCC 58, the Supreme Court re-stated the importance of integrity of the Judicial Officers in the following words:
"29. Judicial service is not an ordinary government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the Kumar Vimal 2013.07.12 11:05 I attest to the accuracy and integrity of this document Chandigarh CWP No.13720 of 2013 5 courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar's wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and the rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty".
The claim of the writ petition is required to be examined keeping in view the afore-stated salutary principles. In Rajendra Singh Verma's case (supra), an argument was raised that without any material, the entry 'C (Integrity doubtful)' cannot be recorded. The Court also considered the argument that before recording adverse entry, an opportunity of hearing should be granted to the Officer. The said arguments were dealt with in the following manner:
"175. Another point which was pressed into service for consideration of the Court was that the procedure of recording ACR wherein the appellants were given adverse remarks was in violation of the rules and principles of natural justice and as there was no material which would justify adverse entries in the ACRs of the appellants, the same could not have been taken into consideration while passing orders of compulsory retirement.
xxx xxx xxx
189. The argument that material was not supplied on the basis of which "C-Integrity Doubtful" was awarded to the appellants and, therefore, the order of compulsory retirement is liable to be set aside has no substance. Normally and contextually the word "material" means substance, matter, stuff, something, materiality, medium, data, facts, information, figures, notes, etc. When this Court is examining as to whether there was any "material" before the High Court on the basis of which adverse remarks were recorded in the confidential reports of the appellants, this "material" relates to substance, matter, data, information, etc. While Kumar Vimal considering the case of a judicial officer it is not necessary to limit the 2013.07.12 11:05 I attest to the accuracy and integrity of this document Chandigarh CWP No.13720 of 2013 6 "material" only to written complaints or "tangible" evidence pointing finger at the integrity of the judicial officer. Such an evidence may not be forthcoming in such cases.
190. As observed by this Court in R.L. Butail v. Union of India (1970) 2 SCC 876 it is not necessary that an opportunity of being heard before recording adverse entry should be afforded to the officer concerned. In the said case, the contention that an inquiry would be necessary before an adverse entry is made was rejected as suffering from a misapprehension that such an entry amounts to the penalty of censure. It is explained by this Court in the said decision that: (SCC p. 876) "(ii) ... Making of an adverse entry is not equivalent to imposition of a penalty which would necessitate an enquiry or the giving of a reasonable opportunity of being heard to the government servant concerned."
xxx xxx xxx
193. Further, this Court in M.S. Bindra vs. Union of India (1998) 7 SCC 310 has used the phrase "preponderance of probability" to be applied before recording adverse entry regarding integrity of a judicial officer.
There is no manner of doubt that the authority which is entrusted with a duty of writing ACR does not have right to tarnish the reputation of a judicial officer without any basis and without any "material" on record, but at the same time other equally important interest is also to be safeguarded i.e. ensuring that the corruption does not creep in judicial services and all possible attempts must be made to remove such a virus so that it should not spread and become infectious. When even verbal repeated complaints are received against a judicial officer or on enquiries, discreet or otherwise, the general impression created in the minds of those making inquiries or the Full Court is that judicial officer concerned does not carry good reputation, such discreet inquiry and/or repeated verbal complaints would constitute material on the basis of which ACR indicating that the integrity of the officer is doubtful can be recorded. While undertaking judicial review, the Court in an appropriate case may still quash the decision of the Full Court on administrative side if it is found that there is no basis or material on which the ACR of the judicial officer was recorded, but while undertaking this exercise of judicial review and trying to find out whether there is any material on record or not, it is the duty of the Court to keep in mind the nature of function being discharged by the judicial officer, the delicate nature of the exercise to be performed by the High Court on administrative side while recording the ACR and the mechanism/system adopted in recording such ACR."
Kumar Vimal2013.07.12 11:05 I attest to the accuracy and integrity of this document Chandigarh CWP No.13720 of 2013 7 The Hon'ble Supreme Court has considered all the judgments referred to by learned counsel for the petitioner before this Court and taken a view that in the case of a Judicial Officer it is not necessary to limit the "material" only to written complaints or "tangible" evidence pointing finger at the integrity of the judicial officer. Such evidence may not be forthcoming in many cases. Therefore, the argument that there was no tangible material on the basis of which adverse report could be recorded by the Administrative Judge lacks any merit.
In R.C. Chandel's case (supra), the Court considered the consequences of the order of premature retirement and held that it is not a punishment nor has any penal consequence. It also held that the entire service record is required to be taken into consideration, before a decision is taken to allow a judicial officer to continue in service. The officers of doubtful integrity, questionable reputation and wanting in utility are not entitled to benefit of service after attaining the requisite length of service or age. The Court observed as under:
"26. It is true that the appellant was confirmed as District Judge in 1985; he got lower selection grade with effect from 24-3-1989; he was awarded super timescale in May 1999 and he was also given above super timescale in 2002 but the confirmation as District Judge and grant of selection grade and super timescale do not wipe out the earlier adverse entries which have remained on record and continued to hold the field. The criterion for promotion or grant of increment or higher scale is different from an exercise which is undertaken by the High Court to assess a judicial officer's continued utility to the judicial system. In assessing potential for continued useful service of a judicial officer in the system, the High Court is required to take into account the entire service record. Overall profile of a judicial officer is the guiding factor. Those of doubtful integrity, questionable reputation and wanting in utility are not entitled to benefit of service after attaining the requisite length of service or age.Kumar Vimal 2013.07.12 11:05 I attest to the accuracy and integrity of this document Chandigarh CWP No.13720 of 2013 8
27. .....The consideration of the appellant's case for grant of selection grade and super timescale stood on different footing. The entire service record and overall profile of a judicial officer guide the High Court in reaching its satisfaction about the continuance or otherwise after the judicial officer has attained the required length of service or age. When the entire service record of a judicial officer is under consideration, obviously the High Court is alive to such judicial officer's having got promotion(s), increments, etc. during the service".
In Randhir Singh's case (supra), a case of Additional District & Sessions Judge in the State of Haryana, a Division Bench of this Court has recorded the following finding:
"The petitioner's contention that the remarks of 'doubtful integrity' must always be supported with cogent material, too has no factual or legal basis. We say so for the reason that an Administrative Judge in his constant endeavour to assess the overall reputation of a Judicial Officer interacts with the litigant public, members of the Bar, other respectables besides a sound briefing from the peers. It is not necessary that the Judicial Officer would always leave a trail of evidence to be caught by the Administrative Judge. The formation of opinion is an onerous and pious duty which is performed on solemn considerations. While the material may remove all sorts of doubts but there is no legal impediment against expression of views on the 'integrity' or 'honesty' of an Officer even in the absence of supporting proof. A bona fide expression of opinion by an Administrative Judge which has withstood the test of Full Court would call for interference in the exercise of power of judicial review only if the formation of such opinion rests upon totally perverse considerations and its sustenance shall cause grave injustice to the Officer. The petitioner has miserably failed to satisfy this twin test as his allegations of bias or malicious persecution have gone unsubstantiated. No case to interfere with the adverse remarks for the year 1997-98 is thus made out."
Learned counsel for the petitioner vehemently argued that recording of 'Integrity doubtful' is based upon perverse consideration and would cause grave injustice to the officer and, therefore, it falls within the exception as carved out in the aforesaid judgment.
Kumar Vimal 2013.07.12 11:05 I attest to the accuracy and integrity of this document Chandigarh CWP No.13720 of 2013 9
We do not find any merit in the argument raised. Apart from raising an argument, there is no material or allegation pointing out any perversity in the process leading to recording of adverse ACR. There is no allegation of lack of bona-fides by the Administrative Judge. The adverse report recorded by an Administrative Judge is firstly considered by a Committee of 11 Judges and then placed before the Full Court. Since there is no lack of bona-fides attributed at any stage, therefore, no case is made out for interference in the collective wisdom of all the Judges as observed by the Hon'ble Supreme Court again in Rajendra Singh Verma's case (supra), wherein it has been held to the following effect:
"191. Further, in case where the Full Court of the High Court recommends compulsory retirement of an officer, the High Court on the judicial side has to exercise great caution and circumspection in setting aside that order because it is a complement of all the Judges of the High Court who go into the question and it is possible that in all cases evidence would not be forthcoming about integrity doubtful of a judicial officer. As observed by this Court in High Court of Punjab & Haryana v. Ishwar Chand Jain case (supra), at times, the Full Court has to act on the collective wisdom of all the Judges and if the general reputation of an employee is not good, though there may not be any tangible material against him, he may be given compulsory retirement in public interest and judicial review of such order is permissible only on limited grounds. The reputation of being corrupt would gather thick and unchaseable clouds around the conduct of an officer and gain notoriety much faster than the smoke. Sometimes there may not be concrete or material evidence to make it part of the record. It would, therefore, be impracticable for the reporting officer or the competent controlling officer writing the confidential report to give specific instances of shortfalls, supported by evidence.
192. Normally, the adverse entry reflecting on the integrity would be based on formulations of impressions which would be the result of multiple factors simultaneously playing in the mind. Though the perceptions may differ, in the very nature of things there is a difficulty nearing an impossibility in subjecting the entries in the confidential rolls to judicial review. Sometimes, if the general reputation of an employee is Kumar Vimal not good though there may not be any tangible material against him, he 2013.07.12 11:05 I attest to the accuracy and integrity of this document Chandigarh CWP No.13720 of 2013 10 may be compulsorily retired in public interest. The duty conferred on the appropriate authority to consider the question of continuance of a judicial officer beyond a particular age is an absolute one. If that authority bona fide forms an opinion that the integrity of a particular officer is doubtful, the correctness of that opinion cannot be challenged before courts. When such a constitutional function is exercised on the administrative side of the High Court, any judicial review thereon should be made only with great care and circumspection and it must be confined strictly to the parameters set by this Court in several reported decisions. When the appropriate authority forms bona fide opinion that compulsory retirement of a judicial officer is in public interest, the writ court under Article 226 or this Court under Article 32 would not interfere with the order."
Since an appeal is pending before this Court in Dewan Chand's case (supra), we refrain ourselves from commenting upon the said judgment in any manner.
In view of the fact that the Hon'ble Supreme Court has considered the judgments on which the petitioner has put reliance and has taken the view as quoted above, therefore, we find no illegality or irregularity in the order of premature retirement of the petitioner more so when the petitioner has completed 58 years of service. The retention in service beyond 58 years is only for an Officer, who is an asset to the Institution.
Consequently, the present writ petition is dismissed.
(HEMANT GUPTA)
JUDGE
12.07.2013 (FATEH DEEP SINGH)
Vimal JUDGE
Kumar Vimal
2013.07.12 11:05
I attest to the accuracy and
integrity of this document
Chandigarh