Madhya Pradesh High Court
Anwar Ahmad Ansari vs The State Of Madhya Pradesh on 1 September, 2017
Author: Anurag Shrivastava
Bench: Anurag Shrivastava
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
DIVISION BENCH: Hon'ble Shri Justice S.K. Gangele &
Hon'ble Shri Justice Anurag Shrivastava
Writ Petition No.11013 of 2014
Anwar Ahmad Ansari
Versus.
State of M.P and two others
Mr. Khalid Noor Fakhruddin, counsel for the petitioner.
Mr. P.K. Chourasia, Panel Lawyer for the State-respondent No.1.
Mr. Ashish Shroti, counsel for the respondents No.2 & 3/High Court.
Reserved on : 13.07.2017.
ORDER
(pronounced on .09.2017) As per S.K. Gangele,J:
1. Petitioner has filed this petition against the order of compulsory retirement dated 21.04.2014 [Annexure-P-1] passed by the respondent No.1. He further prayed a relief of reinstatement with all consequential benefits.
2. Petitioner was appointed as Civil Judge Class-II. He joined on the aforesaid post on 23.12.1997. He was promoted to the post of Civil Judge Class-I in 2004 and Additional Chief Judicial Magistrate in 2009 and Chief Judicial Magistrate in 2010. After attaining the age of 50 years or on completion of 20 years qualifying service, the service record of the petitioner along with other judicial Officers was placed for scrutiny before the Administrative Committee of respondent No.2 [Lower Judicial service]. The Committee in its meeting held on 10.03.2014, considered the case of the petitioner for assessment of his suitability along with other judicial Officers for further 2 continuance in the State Judicial Service. The Committee after considering the Annual Confidential Reports, overall performance and other available material, recommended that the petitioner be retired compulsory in public interest in exercise of powers under Rule 42 (1)
(b) of M.P. Civil Services(Pension) Rules 1976 read with FR 56 (2)
(a). The recommendations of the Administrative Committee were placed before the Full Court. The Full Court in its meeting held on 23.03.2014 approved the recommendation of the Committee and accordingly High Court made recommendation to the State Government to retire compulsory the petitioner. Consequently, the State Govt. passed the impugned order Annexure-P-1.
3. Petitioner pleaded in the petition that his overall service record is 'Good' and his performance was also 'Very Good'. He received overall "Good" ACR grading during his service career. On the basis of one or two adverse ACRs grading and pendency of departmental enquiry, the petitioner could not be retired compulsory. Hence, the order of compulsory retirement and decision to this effect is contrary to law.
4. The respondents No.2 & 3/High Court in its reply has submitted that the Administrative Committee (Lower Judicial Service) considered the service record of petitioner along with other judicial Officers for continuance in service on completion of 20 years qualifying service or on attaining the age of 50 years. After assessment of overall performance of the petitioner, he was not found to be retained in service further. Hence, the Committee has made a decision to retire the petitioner compulsory in accordance with the provisions of relevant rules and FR as quoted above in the order. The High Court further pleaded in the reply that when the 3 petitioner was working as Civil Judge Class-I at Damoh, the then District Judge awarded "poor" grading to the petitioner "D". He made following remarks:-
"His general attitude had been quite incooperative. So he was not worth entrusting any administrative work. His reputation has been satisfactory. Bears good moral character. But his behavior with superiors was not proper. He must improve it."
5. The aforesaid grading was modified by Portfolio Judge and Hon'ble Chief Justice accepted the grading as "C". Similarly, when the petitioner was posted as Chief Judicial Magistrate, Katni in the year 2011, the District Judge submitted adverse remark against him. The same reads as under:
"There are some complaints about his behavior, punctuality and working in Court."
6. The petitioner was graded "D". The Portfolio Judge accepted the grading of the petitioner and Hon'ble Chief Justice awarded grading "C" to the petitioner. The adverse remarks were communicated to the petitioner vide memo dated 18.04.2012 [Annexure-R-2]. The petitioner submitted representation, however, after due consideration, the representation of the petitioner was rejected.
7. The Annual Confidential report of the petitioner for the year 2012 was also adverse. He was graded "D" [Average] by the then District Judge Katni. The District Judge Katni, made following remarks the same reads as under:-
"An overall assessment in above aspects are average. He is not punctual in his duties. He was not found in Court also at 4 the time of inspection of District Judge (Vigilance) in working period, but his Court was running and evidence was going on."
8. The Portfolio Judge affirmed the grading "D". It was approved by Hon'ble Chief Justice. The remarks were communicated to the petitioner vide memo dated 17.04.2013 [Annexure-R-3]. Thereafter, a departmental enquiry was conducted against the petitioner leveling the following charges:-
Article of Charge-I "That, you were in the habit of not sitting on the board and often leaving the court during Court hours. On 16.12.2012 at 2.55 pm, you were not found on the Board by District Judge, Katni. Similarly on 27.07.2012 at 1.00 pm during surprise inspection by District Judge (I/V), Jabalpur, you were found absent on the Board.
Article of Charge-II That, you on 27.07.2012 at 1.00 pm. were not present on the Board and in your absence on your directions, in Cr. Case No.3190/06 (State vs. Dindayal and Ors) the statements of witnesses Rajendra Pratap Singh (PW-14) and M.M. Upadhyayay (PW-15) were being recorded by your Court staff."
9. The case of the petitioner was considered for promotion [Entry Level] by Administrative Committee on 04.03.2013 and after due consideration of service record, the Administrative Committee deferred the matter as regular departmental enquiry was pending against him. Thereafter, the Administrative Committee [Lower Judicial Service] in its meeting held on 10.03.2014 on the basis of ACRs, overall performance, entire service records and other available materials, has recommended for compulsory retirement in public 5 interest. Thereafter, the matter was placed before the Full Court in the meeting held on 20.03.2014. The Full Court had taken a decision to retire the petitioner compulsorily.
10. The petitioner pleaded that he has received 'Good' ACRs grading during service career. As per petitioner he received following ACRs grading during the period 1998 to 2013.
Work done ACR
Year Per day Unit Total Civil Grade Remark
Unit
1998 C Good
1999 B Very Good
2000 6.78 520.30 C Good
2001 6.43 326.15 B Very Good
2002 6.86 301.65 B Very Good
2003 8.86 401.55 B Very Good
2004 8.42 354.75 B Very Good
2005 6.46 384.82 B Very Good
2006 8.16 413.00 C Good
2007 6.90 678.20 C Good
2008 8.13 381.52 C Good
2009 6.36 369.00 C Good
2010 9.60 392.85 B Very Good
2011 13.64 467.47 C Good
2012 15.64 468.60 D Average
2013 5.83 248.80 C Good
11. It is further admitted the fact that the departmental enquiry was initiated against the petitioner. He pleaded that it was due to ill will of the then District Judge. The petitioner admitted the fact that he used to attend Friday prayer and for the aforesaid purpose, he used to leave the Court. He pleaded that it is permissible in accordance with Rule 5 of M.P. Civil Courts Act 1958. The pendency of the departmental enquiry and some adverse ACR remarks could not be a ground for his compulsory retirement.
612. The law in regard to compulsory retirement of judicial Officer is very well settled. The apex Court in the case of Pyare Mohan Lal vs. State of Jharkhand and others , (2010) 10 SCC 693 has held as under:-
8. In Baikuntha Nath Das and Anr. v. Chief District Medical Officer, Baripada and Anr., AIR 1992 SC 1020 : (1992 AIR SCW 793), this Court has laid down certain criteria for the Courts, on which it can interfere with an order of compulsory retirement and they include mala fides, if the order is based on no evidence, or if the order is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, i.e. if it is found to be a perverse order. The Court held as under:-
"(i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
(ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a Government servant compulsorily. The order is passed on the subjective satisfaction of the Government.
(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or the Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed
(a) mala fide, or (b) that it is based on no evidence, or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material : in short, if it is found to be a perverse order.
(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more 7 importance to record of and performance during the later years.
The record to be so considered would naturally include the entries in the confidential records/character rolls, both favourable and adverse. If a Government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.
(v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference." (Emphasis added).
9.Similar view has been reiterated by this Court in Posts and Telegraphs Board and Ors. v. C.S.N. Murthy, AIR 1992 SC 1368 :
(1992 AIR SCW 1362); Sukhdeo v. Commissioner, Amravati Division, Amravati and Anr., (1996) 5 SCC 103; I.K. Mishra v. Union of India and Ors., AIR 1997 SC 3740 : (1997 AIR SCW 2944); M.S. Bindra v. Union of India and Ors., AIR 1998 SC 3058 : (1998 AIR SCW 2918); and Rajat Baran Roy and Ors. v. State of West Bengal and Ors., AIR 1999 SC 1661 : (1999 AIR SCW 1279). This Court observed that there was a very limited scope of judicial review in a case of compulsory retirement and it was permissible only on the grounds of non- application of mind; mala fides; or want of material particulars. Power to retire compulsorily a Government servant in terms of Service Rules is absolute, provided the authority concerned forms a bona fide opinion that compulsory retirement is in public interest.
10. In State of Gujarat and Anr. v. Suryakant Chunilal Shah, (1999) 1 SCC 529, this Court held that while considering the case of an employee for compulsory retirement, public interest is of paramount importance. The dishonest, corrupt and dead-wood deserve to be dispensed with. How efficient and honest an employee is, is to be assessed on the basis of the material on record, which may also be ascertained from confidential reports. However, there must be some 8 tangible material against the employee warranting his compulsory retirement.
11. In State of U. P. and Anr. v. Bihari Lal, AIR 1995 SC 1161 : (1995 AIR SCW 1213), this Court held that 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 Court further held that:
"4.....What is needed to be looked into, is the bona fide decision taken in public interest to augment efficiency in the public service."
12. In State of U. P. and Ors. v. Vijay Kumar Jain, AIR 2002 SC 1345 :
(2002 AIR SCW 1171), this Court while dealing with the issue observed as under:
"16. Withholding of integrity of a Government employee is a serious matter. In the present case, what we find is that the integrity of the respondent was withheld by an order dated 13-6-1997 and the said entry in the character roll of the respondent was well within ten years of passing of the order of compulsory retirement. During pendency of the writ petition in the High Court, the U. P. Services Tribunal on a claim petition filed by the respondent, shifted the entry from 1997-98 to 1983-84. Shifting of the said entry to a different period or entry going beyond ten years of passing of the order of compulsory retirement does not mean that vigour and sting of the adverse entry is lost. Vigour or sting of an adverse entry is not wiped out, merely it is relatable to 11th or 12th year of passing of the order of compulsory retirement. The aforesaid adverse entry which could have been taken into account while considering the case of the respondent for his compulsory retirement from service, was duly considered by the State Government and the said single adverse entry in itself was sufficient to compulsorily retire the respondent from service. We are, therefore, of the view that entire service record or confidential report with emphasis on the later entries in the 'character roll can be taken 9 into account by the Government while considering a case for compulsory retirement of a Government servant. (Emphasis added)
13. In Jugal Chandra Saikia v. State of Assam and Anr., AIR 2003 SC 1362 : (2003 AIR SCW 1787), this Court held that where the Screening Committee is consisting of responsible officers of the State and they have examined/assessed the entire service record and formed the opinion objectively as to whether any employee is fit to be retained in service or not, in the absence of any allegation of mala fides, there is no scope of a judicial review against such an order.
14. In Nawal Singh v. State of U. P. and Anr., AIR 2003 SC 4303 : (2003 AIR SCW 4963), a similar view has been reiterated. The Court observed as under:
"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.
12.......Further, it is impossible to prove by positive evidence the basis for doubting the integrity of the Judicial Officer. In the present-day system, reliance is required to be placed on the opinion of the higher officer who had the opportunity to watch the performance of the officer concerned from close quarters and formation of his opinion with regard to the overall reputation enjoyed by the officer concerned would be the basis.10
13.....the lower judiciary is the foundation of the judicial system. We hope that the High Courts would take appropriate steps regularly for weeding out the dead wood or the persons polluting the justice delivery system."
15. In Chandra Singh and Ors. v. State of Rajasthan and Anr., AIR 2003 SC 2889 : (2003 AIR SCW 3518), this Court after examining the entire evidence on record came to the conclusion that the compulsory retirement awarded to the appellant therein, Chandra Singh, a Judicial Officer, was not in consonance with law. However, considering the report of the Committee and taking note of the adverse remarks made against him, the Court refused to grant him any relief. The relevant part of the judgment reads as under:
"37...It will bear repetition to state that in terms of Rule 53 of the Pension Rules, an order for compulsory retirement can be passed only in the event the same is in public interest and/or three months' notice or three months' pay in lieu thereof had been given. Neither of the aforementioned conditions had been complied with....
39. We have, therefore, no option but to hold that the actions on the part of the High Court or the State in compulsorily retiring the appellants herein were illegal.
40. Article 235 of the Constitution of India 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 deadwood. This constitutional power of the High Court cannot be circumscribed by any rule or order. We can usefully refer to some of the leading cases on Article 235:
1. State of Assam v. Ranga Mohd., AIR 1967 SC 903 (five Judges)
2. Samsher Singh v. State of Punjab, AIR 1974 SC 2192 (seven Judges) 11
3. High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil, AIR 1997 SC 2631 : (1997 AIR SCW 2592) * * *
47. In the instant case, we are dealing with the higher Judicial Officers. We have already noticed the observations made by the Committee of three Judges. 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."
16. In Shiv Dayal Gupta v. State of Rajasthan and Ann, (2005) 13 SCC 581 : (2006 AIR SCW 43), this Court examined the case of the compulsory retirement of a Judicial Officer and came to the conclusion that the Review Committee had made an overall assessment considering the entire service record of the said officer and came to the conclusion that continuance of the said officer in service would be a liability to the Department and adverse to public interest as his ACRs revealed that he was poor in writing the judgments and was advised to improve the same. His judicial work was found unsatisfactory and he had been advised to improve the same. His integrity was found doubtful in the year 1983. He had earlier been superseded while being considered for promotion in 1983 and he had been given an adverse entry in 1993 that he failed to inspire confidence in subordinate staff and lawyers and had a low rate of disposal. On the basis of the aforesaid adverse entries, he was given compulsory retirement vide order dated 9.11.2000. This Court refused to interfere with the said order in view of the fact that he could not raise proper allegations of mala fides or establish that the order of compulsory retirement was passed without application of mind. While deciding the said case, the court placed reliance upon the judgment of this Court in Vijay Kumar Jain, (AIR 2002 SC 1345 : 2002 AIR SCW 1171) (supra).
17. In M.P. State Co-operative Dairy Federation Ltd. and Anr. v. Rajnesh Kumar Jamindar and Ors., (2009) 15 SCC 221, this Court held that judicial review of an order of compulsory retirement is 12 permissible if the order is perverse or arbitrary, as also where there is non-compliance of statutory duty by statutory authority but the court should not go into the factual findings. The factors not germane for passing an order of compulsory retirement should not be taken into consideration. The criteria and rules adopted by the employer must be adhered to, to determine whether the employee had become liable for compulsory retirement. An authority discharging a public function must act fairly.
18. Thus, the law on the point can be summarised to the effect that an order of compulsory retirement is not a punishment and it does not imply stigma unless such order is passed to impose a punishment for a proved misconduct, as prescribed in the Statutory Rules. (See Surender Kumar v. Union of India and Ors., (2010) 1 SCC 158) : (2009 AIR SCW 7587). The Authority must consider and examine the overall effect of the entries of the officer concerned and not an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said Authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee "rendered himself a liability to the institution", there is no occasion for the Court to interfere in the exercise of its limited power of judicial review.
WASHED OFF THEORY
19. In State of Punjab v. Dewan Chuni Lal, AIR 1970 SC 2086, a two-Judge Bench of this Court held that adverse entries regarding the dishonesty and inefficiency of the Government employee in his ACRs have to be ignored if, subsequent to recording of the same, he had been allowed to cross the efficiency bar, as it would mean that while permitting him to cross the efficiency bar such entries had been considered and were not found of serious nature for the purpose of crossing the efficiency bar.
20. Similarly, a two-Judge Bench of this Court in Baidyanath Mahapatra v. State of Orissa and Anr., AIR 1989 SC 2218, had 13 taken a similar view on the issue observing that adverse entries awarded to the employee in the remote past lost significance in view of the fact that he had subsequently been promoted to the higher post, for the reason that while considering the case for promotion he had been found to possess eligibility and suitability and if such entry did not reflect deficiency in his work and conduct for the purpose of promotion, it would be difficult to comprehend how such an adverse entry could be pressed into service for retiring him compulsorily. When a Government servant is promoted to higher post on the basis of merit and selection, adverse entries if any contained in his service record lose their significance and remain on record as part of past history. This view has been adopted by this Court in Baikuntha Nath Das, (AIR 1992 SC 1020 :
1992 AIR SCW 793) (supra).
21. However, a three-Judge Bench of this Court in State of Orissa and Ors. v. Ram Chandra Das, AIR 1996 SC 2436 : (1996 AIR SCW 2978), had taken a different view as it had been held therein that such entries still remain part of the record for overall consideration to retire a Government servant compulsorily. The object always is public interest. Therefore, such entries do not lose significance, even if the employee has subsequently been promoted. The Court held as under:-
"7.........Merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the Government servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or competent officer reach that decision. We find that selfsame material after promotion may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the 14 Government servant in service after he attained the required length of service or qualified period of service for pension."
(Emphasis added) This judgment has been approved and followed by this court in State of Gujarat v. Umedbhai M. Patel, AIR 2001 SC 1109 : (2007 AIR SCW 862), emphasising that the "entire record" of the Government servant is to be examined.
22. In Vijay Kumar Jain, (AIR 2002 SC 1345 : 2002 AIR SCW 1171) (supra), this Court held that the vigour or sting of an entry does not get wiped out, particularly, while considering the case of employee for giving him compulsory retirement, as it requires the examination of the entire service records, including character rolls and confidential reports. 'Vigour or sting of an adverse entry is not wiped out' merely because it relates to the remote past. There may be a single adverse entry of integrity which may be sufficient to compulsorily retire the Government servant.
The Larger Benchs' Judgment:
23. In State of U. P. v. Ram Chandra Trivedi, AIR 1976 SC 2547, this Court observed that it must be borne in mind that in cases where there is any conflict between the views expressed by larger and smaller Bench of this Court, the court cannot disregard or skirt the views expressed by the larger Bench. In Smt. Triveniben v. State of Gujarat, AIR 1989 SC 1335, this Court considered the issue and observed as under:
"35......The practice over the years has been that a larger Bench straightway considers the correctness of and if necessary overrules the view of a smaller Bench. This practice has been held to be a crystallised rule of law in a recent decision by a Special Bench of seven learned Judges. In A. R. Antulay v. R. S. Nayak, AIR 1988 SC 1531, Sabyasachi Mukharji, J., speaking for the majority said (at p. 1548 of AIR) :
'43.The principle that the size of the Bench whether it is comprised of two or three or more Judges does not matter, was enunciated in 15 Young v. Bristol Aeroplane Ltd., (1944-2 All ER 293) (supra) and followed by Justice Chinnappa Reddy in Javed Ahmad Abdul Hamid Pawla v. State of Maharashtra, (AIR 1985 SC 231), where it has been held that a Division Bench of two Judges, has not been followed by our Courts.
44. The law laid down by this Court is somewhat different. There is a hierarchy within the Court itself here where larger Benches overrule smaller Benches. See Mattulal v. Radhey Lal, AIR 1974 SC 1596; Union of India v. K. S. Subramanian, AIR 1976 SC 2433 at 2437; and State of U. P. v. Ram Chandra Trivedi, AIR 1976 SC 2547 at p. 2555. This is the practice followed by this Court and now it is a crystallised rule of law.'
36. The answer to the question posed in Javed Ahmad case thus stands concluded and it is now not open to any one to contend that a Bench of two Judges cannot be overruled by a Bench of three Judges. We must regard this as a final seal to the controversy."
24. In view of the above, the law can be summarised to state that in case there is a conflict between two or more judgments of this court, the judgment of the larger Bench is to be followed. More so, the washed off theory does not have universal application. It may have relevance while considering the case of Government servant for further promotion but not in a case where the employee is being assessed by the Reviewing Authority to determine whether he is fit to be retained in service or requires to be given compulsory retirement, as the Committee is to assess his suitability taking into consideration his "entire service record".
13. In the aforesaid judgment, the Hon'ble Supreme Court has considered its previous judgments. The judgment is in regard to judicial Officer hence, it is not necessary to consider other judgments. The principle of law laid down by the Hon'ble Apex Court is that "matter of compulsory retirement of judicial Officer is required 16 to be examined treating him to be different from other wings of Society". The case of the judicial Officer is considered by a Committee of Judges of High Court duly constituted by Hon'ble Chief Justice and then, the report of the Committee is placed before the Full Court. The decision is taken by the Full Court after due deliberation on the matter. The single entry regarding integrity in regard to Judicial Officer is sufficient to award compulsory retirement. The suitability of the Officer may be considered after taking into consideration his entire service record.
14. It is admitted by the petitioner that he used to go to attend Friday prayer [Namaz] after leaving the Court. He pleaded that it is permissible in accordance with Rule 5 of M.P. Civil Courts Act 1958. For ready reference the aforesaid rule reads as under:-
"5. (1) The working hours in every judicial office shall be from 10.30 AM to 5.30 P.M. (2) It is the duty of every Judge to insist on the punctual attendance of all members of the establishment at the hour prescribed by this rule, on the entry in the attendance register of the hour of arrival of each member and on the prompt and regular despatch of all official business.
Note 1. Permission should be given for one hour on Fridays to such Muhammadan officials as ask for it to say their Juma prayers on the clear understanding that they would work an extra hour to make up for this time.
In accordance with the aforesaid rule, permission has to be obtained by a Muhammadan Judicial Officer to leave the Court from one hour on Fridays. The petitioner no where pleaded in the petition that he had obtained permission for Friday prayer in accordance with the aforesaid Rule.
1715. It is a fact that the petitioner was subjected to a departmental enquiry for the charges mentioned in the aforesaid judgment. The District Judge inquiring the Court. He noticed that the petitioner was not on the Board/Dias during Court hours and his Court was running and evidence was going on. District Judge inquiring himself mentioned this fact in his report and also stated the same facts in his statement. He specifically stated that he inspected the Court on 27.07.2012, the petitioner was not on Board. The statement of ASI was going on and the Assistant Public Prosecutor and deposition writer informed me that the petitioner had instructed for recording the statement. There is also statement of Mr. Rakesh Kamal Koshta, who stated that after examination-in-chief the statement of one witness was recorded in the absence of the petitioner. The same facts have been deposed by ADPO Mr. Jinendra Jain and witness M.M. Upadhayaya ASI. It's a serious conduct. A Judicial Officer is suppose to remain present in the Court when the statements of witnesses are recorded. This is the basic requirement of law.
16. Apart from this, there are adverse entries against the petitioner as mentioned above. Those entries were made by the District Judge who was competent to watch the performance of the petitioner. The purpose of screening of service record of an employee after completion of certain period as mentioned in the Rule is to ascertain that whether the employee is fit to retain in service in future. A discretion is vested with the employer to continue the employee or not in service.
17. In the present case, the Committee constituted by Hon'ble the Chief Justice has considered the case of the petitioner objectively and found that it would be just and proper to retire the petitioner 18 compulsory in public interest. There is sufficient material on record to this effect. The Full Court has approved the decision of the Committee after due application of mind hence, it cannot be said that the decision is arbitrary and illegal.
18. In this view of the matter and taking into consideration the principle of law laid down by the apex Court in the case of Pyare Mohan Lal, (supra) we do not find any merit in this petition. It is hereby dismissed. No order as to the costs.
(S.K. Gangele) (Anurag Shrivastava) Judge Judge pb
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR DIVISION BENCH: Hon'ble Shri Justice S.K. Gangele & Hon'ble Shri Justice Anurag Shrivastava Writ Petition No.11013 of 2014 Anwar Ahmad Ansari Versus.
State of M.P and two others Mr. Khalid Noor Fakhruddin, counsel for the petitioner. Mr. P.K. Chourasia, Panel Lawyer for the State-respondent No.1. Mr. Ashish Shroti, counsel for the respondents No.2 & 3/High Court.
ORDER FOR CONSIDERATION (S.K. GANGELE) JUDGE .08.2017 Hon'ble Shri Justice Anurag Shrivastava (Anurag Shrivastava) Judge POST FOR : .09.2017.
(S.K. GANGELE) JUDGE .09.2017