Madras High Court
R.Balasubramanian vs The Government Of Tamil Nadu on 8 June, 2010
Bench: Elipe Dharma Rao, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 08.06.2010 Coram THE HONOURABLE Mr. ELIPE DHARMA RAO, ACTING CHIEF JUSTICE AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.No.371 of 2006 R.Balasubramanian .. Petitioner Vs. 1.The Government of Tamil Nadu Rep. By the Chief Secretary to Government, Public (Special A) Department, Secretariat Fort St. George, Chennai 600 009. 2.The High Court of Judicature at Madras, Rep. By the Registrar General, Chennai 600 104. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for an issuance of a Writ of Certiorarified Mandamus calling for the records relating to the impugned orders of the first respondent made in his proceedings in G.O.Ms.No.893 public (Special A) dated 24.6.2004 and as confirmed by rejecting the Review Petition in Letter NO.2730/2004-5 Public (Special A) Department, Secretariat dated 18.8.2005 and quash the same as illegal and unsustainable, and consequently direct the Respondents to reinstate the Petitioner as District Judge in the Tamil Nadu State Judicial Service, back into his services with all attendant benefits together with back wages and other emoluments attached to the post. For Petitioner : Mr.R.Thiyagarajan, Senior Counsel For Mr.S.Kanniah For RR 1 : Mrs.Malarvizhi Udayakumar, Special Government Pleader For RR 2 : Mr.A.Jenasenan O R D E R
M.VENUGOPAL,J.
The petitioner has filed this writ petition praying for an issuance of a Writ of Certiorarified Mandamus in calling for the records relating to the impugned orders of the first respondent made in his proceedings in G.O.Ms.No.893, Public (Special A) Department, dated 24.6.2004 and as confirmed by rejecting the Review Petition in Letter NO.2730/2004-5 Public (Special A) Department, Secretariat dated 18.8.2005 and to quash the same as illegal and an unsustainable one and also consequently to direct the Respondents to reinstate the Petitioner as District Judge in the Tamil Nadu State Judicial Service with all attendant benefits together with back wages and other emoluments.
2. The petitioner was selected as a District Munsif through Tamil Nadu Public Service Commission by an order dated 09.6.1988 and posted as Additional District Munsif at the Additional District Munsif Court, Ariyalur during 1988. Subsequently, by direct recruitment, the petitioner was selected as Subordinate Judge in the Tamil Nadu State Judicial Service in pursuance of G.O.Ms.No.121 dated 20.1.1989 and he was posted as Subordinate Judge at Krishnagiri and he joined duty on 10.2.1989 Forenoon. His services were regularised by G.O.Ms.No.961 dated 30.6.1993 with effect from 10.2.1989. By means of an official memorandum dated 30.5.1997, he was promoted to the cadre of District Judge, Grade II and appointed as II Additional District Judge, Tiruchirappalli. Later, he was transferred and posted as Chief Judicial Magistrate, Dindigul and joined duty on 09.03.1998. By a Notification dated 02.12.1999, he was transferred and posted as Principal District Judge, Dindigul and took charge on 06.12.1999 Afternoon.
3.The petitioner was deputed to the Pondicherry Judicial Service for being posted as Additional District Judge, Karaikal as per G.O.No.737, Public (Special A) Department dated 1.6.2000. He was repatriated to the Tamil Nadu State Judicial Service as per Notification No.50/2003 and posted as Principal District Judge, Pudukottai and took charge on 23.4.2003. According to the petitioner, he was discharging his judicial function with utmost sincerity and hard work which was recognised by the High Court from time to time which enabled him to get promotion as Principal District Judge at the relevant period. The High Court, by its official memoranda dated 25.10.2002, 20.1.2003, 7.2.2003 and 26.4.2003, was pleased to record with appreciation the judicial work of the petitioner as an Additional District and Sessions Judge, Pondicherry at Karaikal. Also, the petitioner while serving as a Principal District Judge, Pudukottai had not fallen short of any of the norms prescribed by the High Court.
4.According to the petitioner, while he was working as District Judge, Pudukottai, he received a charge memo dated 24.9.2003 alleging certain irregularities, said to have been committed by him, while he was serving at Dindigul and called upon him to offer his explanation. He submitted his detailed explanation dated 23.11.2003, denying all the charges levelled against him and requested for dropping the alleged proceedings. He had stated in the form of questionnaire along with the enclosure that charges were vague and bereft of necessary details and certain charges are repugnant to the statement of allegations and also prayed for an oral enquiry and to be heard in person etc. The second respondent, by an order dated 15.12.2003, informed the petitioner that a joint enquiry would be held against him and two other staff members. He participated in the joint enquiry conducted along with other delinquents and submitted that he was not responsible for the various misconducts alleged to have been committed by him. He also submitted his written arguments as early as on 1.4.2004, but he was not aware of the final orders passed if any, in the enquiry proceedings.
5.To the petitioner's shock and surprise, the first respondent, by an order in G.O.Ms.No.893, Public (Special A) Department, dated 24.6.2004, has compulsorily retired the petitioner from service, invoking Rule 56(2) of the Fundamental Rules. The said order was communicated by the Registrar General of this Court through a Notification No.80/2004 dated 24.6.2004 mentioning that the petitioner was relieved from the service with effect from 24.6.2004 Afternoon. However, he was given the liberty to file a Review Petition to the Government against the order of compulsory retirement within one month from the date of receipt of the same.
6.The petitioner filed a Review Petition on 17.7.2004 through proper channel by marking an advance copy furnished to the first respondent.
7.In the Review Petition dated 17.7.2004, the petitioner has, among other things, contended that though in the order of compulsory retirement it is mentioned that 3 months pay and allowances should be paid by cheque in lieu of notice, no cheque was in fact enclosed when the orders of compulsory retirement was issued. He, however, received the amount belatedly on 06.7.2004 without prejudice to his rights. He also took a plea that there was no adverse remark on any of his confidential reports and that he had not suffered any punishment during the tenure of his services and had a clean record of service.
8.Further, the other delinquents were supplied with the copies of the Enquiry Report and were provided with an opportunity to make further representations. In the departmental proceedings initiated against the petitioner, no orders were passed and he was not provided with the copy of the enquiry proceedings. He was singled out and an order of compulsory retirement was passed as a punishment, to circumvent the alleged departmental proceedings which were pending during the relevant period. The impugned order of the first respondent was passed in violation of the principles of Natural Justice and also in violation of clause 9 of the consolidated instructions issued relating to compulsory retirement under F.R.56(d). The impugned orders were also passed on the basis of incomplete disciplinary proceedings initiated against him.
9.Even though the petitioner filed the Review Petition as early as on 17.7.2004, the first respondent, by an order dated 18.8.2005 in Letter No.2730/2004-5, rejected the same in limini. Therefore, the petitioner has filed the present writ petition before this Court.
10.According to the learned Senior Counsel appearing for the petitioner at the benefit of various postings from that of the Additional District Judge to Principal District Judge from 30.5.1997 to 23.4.2003 in the absence of any deteriorating or fall in the standard during the following 14 months, neither the recommendations of the Administrative Committee of the High Court nor the order dated 24.6.2004 would be reasonably and validly sustained in the eye of law.
11.It is the further contention of the learned Senior Counsel that the petitioner's work was recognised by the Honourable High Court and as such, he was given various promotions and postings upto 23.4.2003 and if really there was a fall in the standard or his ability or in the matter of discharge of his judicial function, his Confidential Report would have clearly reflected the same and in fact, the competent authority to write the Confidential Report and also the Honourable High Court, through its memorandum dated 25.10.2002, 20.01.2003, 7.2.2003 and 16.4.2003, had recorded, with appreciation, the volume of judicial work turned out by the petitioner as Additional District Judge of Pondicherry at Karaikal.
12.Expatiating his submissions, the learned Senior Counsel appearing for the petitioner contends that the recommendations of the Administrative Committee of the Honourable High Court clearly run contrary to the petitioner's service and the consequences based on such recommendations in the order of compulsory retirement dated 24.6.2004 are clearly baseless and contrary to the guidelines pertaining to the compulsory retirement.
13.The learned Senior Counsel appearing for the petitioner submits that even assuming that certain disciplinary proceedings were pending against the petitioner, the order of compulsory retirement passed during the pendency of the enquiry proceedings is clearly a punitive one. Also, if the Administrative Committee of the High Court had relied upon any report submitted by the Enquiry Officer without communicating a copy of the report to the petitioner, any consequent recommendations made by the Administrative Committee is clearly an illegal one.
14.In any event, the first respondent/State Government ought to have considered the Review Petition of the petitioner independently by passing a reasoned order after considering his legitimate claim.
15.The second respondent in its counter has stated that on complaints received against the petitioner, the Special Officer, Vigilance Cell, High Court, Madras conducted a discreet enquiry and that the Report of the Vigilance Officer, High Court, Madras was placed before the Honourable Administrative Committee and that the said committee in its Meeting on 16.6.2000 had directed to furnish a copy of the report to the petitioner and two others viz., R.Alageswaran, Sheristadar, Principal District Court, Dindigul and N.Reghunathan, Assistant, Principal District Court, Dindigul with a direction to submit their explanations on the said report to the High Court within 15 days. The petitioner and two other staff members are provided with the copy of the report of the Special Officer, Vigilance Cell, High Court, Madras along with relevant documents and thereafter, the explanations received from them were placed before the Honourable Administrative Committee.
16.The Honourable Administrative Committee upon perusing the explanations submitted by the petitioner and two others found that the same were not satisfactory and directed the framing of charges against them.
17.As against the petitioner the following 8 charges were framed.
Charge No.1:
"That you, Thiru. R.Balasubramanian, now Principal District Judge, Pudukottai, while functioning as Additional District Judge-cum-Chief Judicial Magistrate, Dindigul transferred 52 staff members (vide list annexed) out of 81 especially Tvl.Ramachandran, Ponraj, Rajeswaran, Pandi, Tmt.Karpagasundari and R.Balamurugan to various Courts during the period from 31.03.98 to 14.09.99, as they had not paid the amount, as bribe, as demanded by you through Thiru.Alageswaran, then Sheristadar, Additional District Judge-cum-Chief Judicial Magistrate Court, Dindigul and Thiru.N.Raghunathan, then Assistant, Principal District Court, Dindigul, thus committed the acts of corrupt practices, abuse of power, misuse of power and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules."
Charge No.2:
"That you Thiru.R.Balasubramanian, now Principal District Judge, Pudukottai, while functioning as Principal District Judge, Dindigul, demanded a sum of Rs.90,000/- from Thiru.Elango @ P.T.Elangovan through Thiru.Alageswaran, then Shreistadar of the Principal District Court, Dindigul for appointing him as Xerox Operator, that having received the said amount, you have appointed the said Thiru.Elango @ P.T.Elangovan as Xerox Operator, thus indulged in corruption and corrupt practices and committed the acts of abuse of power, misuse of power and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules".
Charge No.3:
"That you Thiru.R.Balasubramanian, now Principal District Judge, Pudukottai, while functioning as Principal District Judge, Dindigul, promoted Thiru.Sivapathasekarapandi as Head Clerk and then as Superintendent, within a period of three months, after receiving bribe through Thiru.Alageswaran, then Sheristadar, Principal District Court, Dindigul, thus committed the acts of corrupt practices, abuse of power and misuse of power and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules".
Charge No.4:
"That you, Thiru. R.Balasubramanian, Principal District Judge, Pudukottai, while functioning as Additional District Judge-cum-Chief Judicial Magistrate, Dindigul and Principal District Judge, Dindigul, during the course of inspection of Subordinate Courts in Dindigul District received costly clothes and valuable gifts and valuable articles from the staff members of the Subordinate Courts through Thiru.R.Alageswaran, then Aheristadar, Additional District Judge-cum-Chief Judicial Magistrate Court, Dindigul and Thiru.N.Raghunathan, then Assistant, Principal District Court, Dindigul, that you also indulged in immoral activities during the course of inspection of Subordinate Court in Dindigul District, thus committed the acts of corrupt practices, abuse of power and misuse of power, failure to maintain the decorum and dignity of a Judicial Officer and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules".
Charge No.5:
"That you, Thiru. R.Balasubramanian, now Principal District Judge, Pudukottai, while functioning as Principal District Judge, Dindigul, allowed Tvl. Alageswaran, formerly Sheristadar and N.Raghunathan, then Assistant of the Principal District Court, Dindigul to collect a sum of Rs.300/- each from Last Grade Government Servants, Rs.850/- each from Assistants in two monthly instalments and Rs.500/- each from Junior Assistants in two monthly instalments in various Courts in Dindigul District for meeting out expenses, in connection with your inspection to Subordinate Courts in Dindigul District; that you also received your household requirements at their expenses, thus committed the acts of abuse of power, misuse of power and indulged in corrupt practices and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules".
Charge No.6:
"That you, Thiru. R.Balasubramanian, now Principal District Judge, Pudukottai, while functioning as Additional District Judge-cum-Chief Judicial Magistrate, Dindigul, demanded and received one big tin of refined oil and 2Kgs., of coconut oil from Thiru.Veeraswamy, Head Clerk, Court of Judicial Magistrate No.III, Dindigul, through your Masalchi Thiru.Manivel; that you also demanded and received the household articles from Tvl.Sadayandi, Pattani and Ramachandran; that you used to travel in the Taxi hired by the said Thiru.Veerasamy and Pattani, Head Clerk, Court of Judicial Magistrate No.III, Dindigul, whenever you went out, at their expenses, thus committed the acts of corrupt practices, abuse of power, misuse of power and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules".
Charge No.7:
"That you Thiru.R.Balasubramanian, now Principal District Judge, Pudukottai, while functioning as Principal District Judge, Dindigul, through Thiru.Alageswaran, then Sheristadar, I Additional District Judge-cum-Chief Judicial Magistrate Court, Dindigul, demanded and received a sum of Rs.10,000/- on 1.3.99 from Thiru.T.Krishnan, Petition in R.C.O.P.No.61/95 pending on the file of the Principal District Munsif Court, Dindigul for influencing the then Principal District Munsif, Dindigul to pass favourable orders in respect of the petitioner, that having received the said amount, you influenced the then Principal District Munsif, Dindigul, to give a favourable judgment in the said R.C.O.P., thus indulged in corruption and committed the acts of corrupt practices, misuse of power and abuse of power and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules".
Charge No.8:
"That you Thiru.R.Balasubramanian, Principal District Judge, Pudukottai while functioning as Additional District Judge-cum-Chief Judicial Magistrate, Dindigul, favoured on Thiru.Ramaswamy, Advocate by granting compensation of Rs.90,000/- for a claim of Rs.1 lac in M.C.O.P.No.62/97 that you granted a compensation of Rs.2 lacs for a claim of Rs.2 lacs in M.C.O.P.No.65/99 and granted compensation of Rs.1,50,000/- for claim of Rs.1,50,000/- in M.C.O.P.No.66/99 on 6.12.99, wherein the said Thiru.Ramasamy, Advocate appeared, that you passed the said orders on the date on which you were relieved from the post of Additional District Judge-cum-Chief Judicial Magistrate, Dindigul, with ulterior motive, thus committed the acts of misuse of power, abuse of power and abuse of process of law and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules".
18.The Honourable Administrative Committee in the Meeting held on 7.8.2003 resolved to appoint the Honourable Mr. Justice M.Chockalingam as an Enquiring Judge to conduct a Departmental Enquiry against the petitioner and two other ministerial staff. The Honourable Mr.Justice M.Chockalingam conducted the enquiry and submitted his findings on 17.4.2004 holding that out of 8 charges framed against the petitioners, 5 charges viz., 1, 4, 5, 6 and 8 were proved and charges 2, 3 and 7 were not proved.
19.The Administrative Committee in the Meeting on 22.3.2004, while considering the case of 18 Judicial Officers, who completed the age of 50 years during April 2004 and June 2004 in Tamil Nadu State Judicial Service and Pondicherry Judicial Service under F.R.56(2) and F.R.56(J) along with the case of the petitioner had resolved to defer the case of the petitioner.
20.On 20.4.2004, in the Administrative Committee Meeting, the findings of Honourable Mr.Justice M.Chockalingam were placed for reviewing the case of the petitioner under F.R.56(2) who was completing the age of 50 years during the month of June 2004 and the Committee had resolved as follows:
"The Committee met and extensively discussed the matter. Having regard to the reasons given by the learned Judge Mr.Justice M.Chockalingam, on facts as also the discussion of the evidence of the witnesses, the Committee is of the considered opinion that the findings of the learned Judge is fit to be accepted. Accordingly, the committee hereby accepts the report."
21.The Administrative Committee of this Court, after perusing the findings submitted by the learned Judge and after verifying the conduct of the petitioner/officer and his Annual Confidential Report and all other relevant records according to the guidelines specified in G.O.Ms.No.623, dated 14.7.1993, was of the opinion that the petitioner, Principal District Judge, Pudukottai was found "not eligible" to continue any further beyond the age of 50 years and as such, he was retired compulsorily in consonance with F.R.56(2) as his continuance in service beyond 50 years was against public interest.
22.The Honourable Administrative Committee's Minutes dated 20.4.2004 was approved by the Full Court on 21.4.2004.
23.As directed by this Court, the Registry addressed a D.O. Letter No.58/2004 Con-B1 dated 23.4.2004 to the Government to obtain the orders of Appointing Authority retiring the petitioner from service compulsorily under F.R.56(2) in public interest. The Government issued orders in G.O.Ms.No.893, Public (Special A) Department, dated 24.6.2004. This Court, in its Notification No.80/2004, notified retrieving the petitioner from the Tamil Nadu State Judicial Service with effect from 24.6.2004 Afternoon.
24.The Chief Secretary to Government, in his letter dated 31.7.2004, had forwarded the Review Petition submitted by the petitioner and requested the High Court to send its views to the Government. Accordingly, this Court sent its remarks on 17.12.2004 and the Government, in Letter No.2730/2004-5, Public (Special A) Department, dated 18.8.2005, had issued orders rejecting the review petition of the petitioners.
25.The procedures prescribed as per F.R.56(2) were duly complied with before passing the impugned order. Though the petitioner would have continued upto the age of 58 years in service under normal circumstances, the Administrative Committee, however, was of the opinion that the petitioner was to be retired compulsorily and the same was approved by the Honourable Full Court on 21.4.2004 and hence, there was no violation of principles of Natural Justice.
26.As per F.R.56(2), the petitioner was given 3 months salary in lieu of notice after following the due procedure. The 3 months pay was given to the petitioner on 6.7.2004 within 10 days which would not vitiate the impugned order.
27.The impugned order of the first respondent in G.O.Ms.No.893, Public (Special A) Department, dated 24.6.2004, compulsorily retiring the petitioner from service under F.R.56(2) was not a punitive one because of the fact that though disciplinary action was initiated against the petitioner, no orders were passed in the disciplinary proceedings and no stigma has also been attached.
28.Inasmuch as the orders were passed under F.R.56(2), there was no necessity to serve the enquiry findings to the petitioner and therefore, there is no violation of Principles of natural justice, as has been falsely alleged on the part of the petitioner.
29.The first respondent has adopted the counter filed by the second respondent/High Court insofar as it relates to it.
30.In support of the contention that the impugned order dated 24.6.2004, compulsorily retiring the petitioner from service, is a punitive and stigmatic one, the learned Senior Counsel appearing for the petitioner cites the decision of Honourable Supreme Court in Ram Ekbal Sharma V. State of Bihar and another (1990 II SCR 679 at page 688) wherein it is observed as follows:
"It is thus, clear and evident from the counter-affidavit filed on behalf of the State Government referred to hereinbefore that the basis of the impugned order of compulsory retirement from service of the appellant is not in public interest as stated in the order of compulsory retirement dated October 26, 1988. The impugned order, in fact, has been passed on the basis of the memorandum dated October 6, 1988 which is also based on the Report given by the Deputy Development Commissioner, Dumka by his letter dated September 19, 1987 without asking any explanation from the appellant and without giving him any opportunity to defend his case before the Deputy Development Commissioner. It is, therefore, wrong to say that the basis of the order is not the said memorandum as well as the report of the Deputy Development Commissioner which clearly evinces that the impugned order of compulsory retirement is a mere camouflage being couched in innocuous terms and in fact the same has been made by way of punishment."
Also, in the aforesaid decision at page 693 the Honourable Supreme Court has held as follows:
"On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere from of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned government servant as has been held by this Court in Anoop Jaiswal's case [AIR 1984 SC 636]. This being the position the respondent-State cannot defend the order of compulsory retirement of the appellant in the instant case on the mere plea that the order has been made in accordance with the provisions of Rule 74(b)(ii) of the Bihar Service Code which prima facie does not make any imputation or does not cast any stigma on the service career of the appellant. But in view of the clear and specific averments made by the respondent-State that the impugned order has been made to compulsorily retire the appellant from service under the aforesaid Rule as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the impugned order cannot but be said to have been made by way of punishment. As such, such an order is in contravention of Article 311 of the Constitution of India as well as it is arbitrary as it violates principles of natural justice and the same has not been made bona fide."
31.He also relies on the decision of Honourable Supreme Court in R.K.Panjetha V. Haryana Vidyut Prasaran Nigam Limited and another [(2002) 10 Supreme Court Cases 590] wherein it was observed that 'the order of compulsory retirement stating that on the basis of the report and recommendations of the Committee the appointing authority came to the conclusion that the integrity of the officer concerned was doubtful and that it was not in the interest of the employer company to keep him in service,' was held to be stigmatic and punitive."
32.He draws the attention of this Court to the decision of the Honourable Supreme Court in State of Gujarat V. Umedbhai M.Patel [(2001) 3 Supreme Court Cases 314 at page 316] wherein it is observed as follows:
"In the instant case, there were absolutely no adverse entries in the respondent's confidential record. The respondent had successfully crossed the efficiency bar at the age of 50 as well as at 55. The State Government had sufficient time to complete the enquiry against him but the enquiry was not completed within a reasonable time. Even the Review Committee did not recommend the compulsory retirement of the respondent. The respondent had only less than two years to retire from service. Therefore, it could be said that the order of compulsory retirement was passed for extraneous reasons. As the authorities did not wait for the conclusion of the enquiry and decided to dispense with the services of the respondent merely on the basis of the allegations which had not been proved and in the absence of any adverse entries in his service record to support the order of compulsory retirement, the High Court was right in holding that the impugned order was liable to be set aside. Three months' time is given to the appellant State to comply with the directions of the High Court, failing which the respondent would be entitled to get interest at the rate of 18% for the delayed payment of the pecuniary benefits due to him."
33.He also brings to the notice of this Court the decision of the Honourable Supreme Court in High Court of Punjab & Haryana V. Ishwar Chand Jain and another [(1999) 4 Supreme Court Cases 579 at page 582] wherein it is held thus:
"Respondent was retired while under suspension. The High Court on its administrative side decided to keep disciplinary proceedings against respondent pending for the purpose of imposing a cut on his retiral benefits. An obvious conclusion is that action of the High Court was based on the allegation of misconduct, which was the subject-matter of enquiry and which appears to be the basis for recording adverse remarks by the High Court in ACR for the year 1991-92. There is therefore substance in respondent's argument that the High Court found a short cut to remove him from service when the order of retirement was based on the charges of misconduct, the subject-matter of enquiry. The impugned order of compulsory retirement, though innocuously worded, is in fact an order of respondent's removal from service and cannot be sustained."
34.Per contra, the learned counsel for the second respondent, to lend support to the contention that the impugned order dated 24.6.2004 compulsory retiring the petitioner from service is not a stigmatic one, cites the decision of the Hon'ble Supreme Court in Nawal Singh V. State of U.P. and another [(2003) 8 Supreme Court Cases 117 at page 119] wherein it is held as follows:
"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 persons 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, the Supreme Court would not interfere with the same, particularly because the order of compulsory retirement is based on the subjective satisfaction of the authority. The present appeals are required to be decided on the basis of the said principles.
Rule 2 of the U.P. Judicial Officers (Retirement on Superannuation) Rules, 1992 only provides that notwithstanding anything to the contrary contained in Rule 56 of the U.P. Fundamental Rules, a judicial officer shall retire from service on superannuation when he attains the age of 60 years. Under Rule 56(a), the retirement age is 58 years and that part of the rule would not be applicable as it is contrary to Rule 4 of the 1992 Rules. From this, it cannot be said that Rule 56(b) to (e) and Explanations (1), (2) or (3) are, in any way, altered, amended or substituted. Therefore, contention (I) of the appellants is without any basis."
35.He also relies on the decision of Honourable Supreme Court in R.Natarajan V. State of Tamil Nadu, rep. by its Chief Secretary to Government, Public (Special-A) Department and another [(2006) 3 M.L.J. 799] wherein it is held thus:
"It is no doubt true that any order relating to compulsory retirement of an officer, more particularly a judicial officer, is given much publicity in the media and that, however, cannot be a ground to hold that compulsory retirement casts a stigma. It is well known that the order of compulsory retirement in terms of Fundamental Rule 56(2) is not considered as a stigma and only where it is imposed as a punishment such order is considered as stigma."
36.The learned counsel for the second respondent cites the decision of Honourable Supreme Court in B.Kulamani v. Registrar General of High Court, Chennai and another [(2008)4 MLJ 408 at page 413] wherein it is laid down as follows:
"33.The contentions of the petitioner that he was not given an opportunity and the order impugned in the writ petition was passed in violation of principles of natural justice are all contentions which cannot be permitted to be made. Such contentions cannot be appreciated in the case of compulsory retirement. It is well settled that the decision of a compulsory retirement is purely an administrative one, which is taken based on subjective satisfaction of the authority concerned and so long as such decision was based on relevant materials and judicious consideration, there is very little scope for interference with such a decision."
37.At this stage, we feel it apt to point out the decision of the Honourable Supreme Court in Union of India V. Ajoy Kumar Patnaik [Judgments Today 1995 (7) S.C. 30] wherein the Honourable Supreme Court has held thus:
"We are concerned with the merits in the matter of disposal or manner of disposal of the appeals or classification. We are concerned with regard to the integrity of the officer in the decision making process. When the authorities had material before them and considered that material to be sufficient to doubt the integrity of the officer, it is settled law that the authority competent to take the decision to compulsorily retire the officer can form an opinion whether continuance of such officer is in the public interest. It has gone into the conduct of the officer and that his conduct in the manner of disposal of the appeals as quasi judicial authority does encompass into misconduct for taking disciplinary action.
It would thus be clear that an officer though performs official quasi judicial functions, his conduct in the discharge of the quasi judicial act or omission relates to the activity in the course of the discharge of his duties as a servant of the Government and bears reasonable relation or nexus with the nature and conduct of service and when it casts reflection upon his reputation, integrity or devotion to duty as a public servant, that would be squarely referable to the conduct of the public servant amenable to disciplinary proceeding. When it is a misconduct, the competent authority is equally entitled to take a decision whether an officer has impeccable integrity and absolute devotion to duty for further continuation in service. The competent authority would be free to consider the material, particularly the latest one, and form a bona fide decision in the public interest to compulsorily retire an officer from service.
Since the competent authorities at different levels had considered the material and ultimately had decided to compulsorily retire the respondent from service, it cannot be said that it is an arbitrary decision."
38.Also, this Court worth recalls the decision of the Honourable Supreme Court in Collector, Allahabad and another V. Chhote Lal [1995 Supp (1) Supreme Court Cases 184] wherein it is observed as follows:
"... In the present case, a departmental enquiry was made, the charge was proved and he was punished. This entry in his confidential report was the basis for taking the view that he needs to be compulsorily retired in public interest. If the record of the incumbent is not up to the mark and if it betrays lack of integrity etc., it is open to the State to compulsorily retire such an employee. We, therefore, hold that the High Court was wrong in the view it took.
5. In the result, the appeal is allowed, the order of the High Court is set aside and the order of compulsory retirement passed against the respondent is revived. There will be no order as to costs."
39.In the decision of the Honourable Supreme Court in Union of India V. J.N.Sinha and another [AIR 1971 Supreme Court 40], it is held as follows:
"Where an appropriate authority bona fide forms opinion that a Government servant be retired in public interest, he can pass order of compulsory retirement. That opinion cannot be challenged before courts. Nor R.56 (j) requires that the opportunity to show cause against compulsory retirement must be given. Order of compulsory retirement can be challenged only on ground that either the requisite opinion was not formed or that the order was passed arbitrarily or on collateral grounds. 1970 Serv LR 213 (Delhi), Reversed. (Paras 7,8,10) Fundamental Rule 56 (j) holds the balance between the rights of the individual Government servant and the interests of the public. While a minimum service is guaranteed to the Government servant, the Government is given power to energise its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest. Compulsory retirement involves no civil consequences. Rule 56 (j) is not intended for taking any penal action against the Government servants. That rule merely embodies one of the facets of the 'pleasure doctrine' embodied in Article 310 of the Constitution."
40.In the decision of the Honourable Supreme Court in Baikuntha Nath Das and another V. Chief District Medical Officer, Baripada and another [(1992) 2 Supreme Court Cases 299 at page 300], it is observed as follows:
"An order of compulsory retirement has to be passed by the government on forming the opinion that it is in the public interest to retire interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the government. 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 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. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56 (j) or a rule corresponding to it. 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) ad not upon seniority."
In the aforesaid decision, at page 301, it is held thus:
"An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour. Principles of natural justice have no place in the context of an order of compulsory retirement. Since the nature of the function is not quasi-judicial in nature and because the action has to be taken on the subjective satisfaction of the government, there is no room for importing the audi alteram partem rule of the natural justice in such a case."
41.In M.S.Bindra V. Union of India and others [AIR 1998 Supreme Court 3058], the Honourable Supreme Court has held as follows:
"Judicial scrutiny of any order imposing premature compulsory retirement is permissible if the order is either arbitrary or mala fide or if it is based on no evidence. The observation that principles of natural justice have no place in the context of compulsory retirement does not mean that if the version of the delinquent officer is necessary to reach the correct conclusion the same can be obviated on the assumption that other materials alone need be looked into."
Moreover, in the aforesaid decision at page 3058, it is observed thus:
"While evaluating the materials the reviewing authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "Nemo Firut Repente Turpissimus" (no one becomes dishonest all on a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of Administrative Law. The authorities should not keep the eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity" it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the labe "doubtful integrity"."
42.In Union of India and others V. Dulal Dutt [(1993) 2 Supreme Court Cases 179 at page 180], the Honourable Supreme Court has held as follows:
"An order of compulsory retirement is not an order of punishment. It is actually a prerogative of the Government but it should be based on material and has to be passed on the subjective satisfaction of the Government. Very often, on enquiry by the Court the Government may disclose the material but it is very much different from the saying that the order should be a speaking order. No order of compulsory retirement is required to be a speaking order. The Government had, before it, the report of the Review committee yet it thought it fit of compulsorily retiring the respondent. The order cannot be called either mala fide or arbitrary in law. Therefore, the Tribunal was not justified in allowing application under Section 19 of the Administrative Tribunals Act challenging the order of compulsory retirement."
43.In the decision of Honourable Supreme Court in Chandra Singh V. State of Rajasthan and another [AIR 2003 Supreme Court 2889 at para 38], it is held as follows:
"This takes us to the question as to whether the action of the High Court in marking the assessment of the performance of the appellants prior to 31-3-1999 stand the scrutiny of R.53 of the Rajasthan Civil Services (Pen-sion) Rules, 1996. In a given case, the said rule may be taken recourse to but the High Court never took any stand that its action was justified thereunder. Ex facie the said rule is not applicable inasmuch as it has never been the contention of the respondents that the impugned order had been passed in public interest or other pre-requisite therefor, namely, giving of three months notice in writing to the Government servant before the date on which he is required to retire in public interest or three months pay and allowances in lieu thereof, had been complied with. Compliance of pre-requisites of such a rule, it is well settled, is mandatory and not directory. Such a plea has expressly been negatived by this Court. (See Rajat Baran Roy's case (supra) paras 13 to 16). It is fairly well settled, that the legality or otherwise of an order passed by a statutory authority must be judged on the face thereof as the reasons contained therein cannot be supplemented by an affidavit. (See Mohinder Singh Gill and another v. Chief Election Commissioner, New Delhi and others (1978) 1 SCC 405). It may be true that mentioning of a wrong provision or omission to mention the correct provision would not invalidate an order so long as the power exists under any provision of law, as was submitted by Mr.Rao. But the said principles cannot be applied in the instant case as the said provisions operate into two different fields requiring compliance of different pre-requisites. It will bear repetition to state that in terms of R.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."
In the aforesaid decision, at page 2901 in para 41, the Honourable Supreme Court has observed as follows:
"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 blacksheep or weed out the dead wood. 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 Art.235.
1.State of Assam v. Ranga Mohammed, AIR 1967 SC 903 (5-Judges)
2.Shamsher v. State of Punjab, AIR 1974 SC 2192 (7-Judges)
3. High Court of Judicature at Bombay v. Shrisih Kumar Rangrao Patil, AIR 1997 SC 2631 (2637)."
44.In Biswanath Prasad Singh V. State of Bihar and others [(2001) 2 Supreme Court Cases 305 at page 309], the Honourable Supreme Court has observed as follows:
"Article 235 of the Constitution vests administrative and disciplinary control over the district judiciary including the subordinate judiciary in the High Court immunising them from the executive control of the State Government so as to protect judicial independence. Control over subordinate courts vested in the High Court is a trust and confidence reposed by the founding fathers of the Constitution in a high institution like the High Court. The trust has to be discharged with a great sense of responsibility. All the High Courts have framed rules dealing with executive and administrative business of the High Court. There are administrative committees and Inspecting Judges in the High Court. Periodical inspections of subordinate courts have to be carried out regularly so as to keep a vigil and watch on the functioning of the subordinate judiciary, the importance and significance whereof needs no emphasis."
Added further, in the aforesaid decision at page 309 the Honourable Supreme Court has held thus:
"The very power to make such entries as have potential for shaping the future career of a subordinate officer casts an obligation on the High Courts to keep a watch and vigil over the performance of the members of subordinate judiciary. An assessment of quality and quantity of performance and progress of the judicial officers should be an ongoing process continued round the year and then to make a record in an objective manner of the impressions formulated by such assessment. An annual entry is not an instrument to be wielded like a teachers' cane or to be cracked like a whip. The High Court has to act and guide the subordinate officers like a guardian or elder in the judicial family. The entry in the confidential rolls should not be a reflection of personal whims, fancies or prejudices, likes or dislikes of a superior. The entry must reflect the result of an objective assessment coupled with an effort at guiding the judicial officers to secure an improvement in his performance. Entries either way have serious implications on the service career. Hence the need for fairness, justness and objectivity in performing the inspections and making the entries in the confidential rolls."
That apart, the Honourable Supreme Court, in the aforesaid decision at page 310, has poignantly observed about the compulsory retirement as follows:
"Compulsory retirement in service jurisprudence has two meanings. Under the various disciplinary rules, compulsory retirement is one of the penalties inflicted on a delinquent government servant consequent upon a finding of guilt recorded in disciplinary proceedings. Such penalty involves stigma and cannot be inflicted except by following procedure prescribed by the relevant rules or consistently with the principles of natural justice if the field for inflicting such penalty be not occupied by any rules. Such compulsory retirement in the case of a government servant must also withstand the scrutiny of Article 311 of the Constitution. Then there are service rules, such as Fundamental Rule 56(j) of the Fundamental Rules, which confer on the Government or the appropriate authority, an absolute (but not arbitrary) right to retire a government servant on his attaining a particular age or on his completing a certain number of years of service on formation of an opinion that in public interest it was necessary to compulsorily retire him. In that case, it is neither a punishment nor a penalty with loss of retiral benefits. Compulsory retirement in public interest under service rules is like premature retirement. It does not cast any stigma. The government servant shall be entitled to the pension actually earned and other retiral benefits. So long as the opinion forming basis of the order for compulsory retirement in public interest is formed bona fide, the opinion cannot be ordinarily interfered with by a judicial forum. Such an order may be subjected to judicial review on very limited grounds such as the order being mala fide, based on no material or on collateral grounds or having been passed by an authority not competent to do so. The object of such compulsory retirement is to weed out the worthless who have lost their utility for the administration."
45.In Posts and Telegraphs Board and others V. C.S.N.Murthy [(1992) 2 Supreme Court Cases 317 at page 318] the Honourable Supreme Court has observed as follows:
"An order of compulsory retirement is not an order of punishment. F.R.56(j) authorises the Government to review the working of its employees at the end of their period of service referred to herein and to require the servant to retire from service if, in its opinion, public interest calls for such an order. Whether the conduct of the employee is such as to justify such a conclusion is primarily for the department authorities to decide. The nature of the delinquency and whether it is of such a degree as to require the compulsory retirement of the employee are primarily for the Government to decide upon. The courts will not interfere with the exercise of this power, if arrived at bona fide and on the basis of material available on the record. No mala fides have been urged in the present case. There was material which showed that the efficiency of the petitioner was slackening in the last two years of the period under review and it is, therefore, not possible to fault the conclusion of the department as being mala fide, perverse, arbitrary or unreasonable."
46.It is to be pointed out that there is no element of charge or imputation in the case of compulsory retirement.
47.In the decision of Honourable Supreme Court in Mayengbam Radhamohan Singh V. The Chief Commissioner (Administrator), Manipur and others [1976 SC at page 2581] wherein it is held that 'the compulsory retirement is not a punishment. There is no stigma in compulsory retirement.'
48.In I.K.Misra V. Union of India and others [(1997) 6 SCC 228] the Honourable Supreme Court has observed that 'Power to retire compulsorily a government servant in terms of the service rules is absolute provided the authority concerned forms an opinion bona fide that the compulsory retirement is in public interest.' Further, in the aforesaid decision at page 230 & 231 in paragraph 3, it is observed as follows:
"... This Court in the case of Baikuntha Nath Das v. Chief Distt. Medical Officer after considering the number of decisions of the Apex Court referred the following principles for testing the validity of order of compulsory retirement: (SCC pp.315-16, para 34) "34. The following principles emerge from the above discussion:
(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 this 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 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.
Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 30 to 32 above"."
Moreover, in the aforesaid decision in paragraph 6 at page 231 & 232 the Honourable Supreme Court has stated thus:
"The adverse remarks in the annual confidential report and the minor punishment inflicted upon the appellant as referred hereinbefore clearly demolishes the contention that the appellant's service record was unblemished. It is not disputed that the entire service record including (good and bad) entries of the appellant were placed before the Review Committee and the Review Committee after considering the aforesaid reports mainly confidential report/character roll both favourable and adverse recommended the appointing authority for compulsory retirement of the appellant from service. The adverse materials placed before the Review Committee and the appointing authority show that the order compulsorily retiring the appellant from service was based on material on record and at no stretch of imagination it can be branded as arbitrary."
49.In Shyamlal V. State of Uttar Pradesh and another [AIR 1954 SC 369 at page 370], the Honourable Supreme Court has laid down as follows:
"There can be no doubt that removal (using the term synonymously with dismissal) generally implies that the officer is regarded as in some manner blameworthy or deficient, that is to say, that he has been guilty of some misconduct or is lacking in ability or capacity or the will to discharge his duties as he should do. The action of removal taken against him in such circumstances is thus founded and justified on some ground personal to the officer. Such grounds, therefore, involve the levelling of some imputation or charge against the officer which may conceivably be controverted or explained by the officer. There is no such element of charge or imputation in the case of compulsory retirement. Further Rule 49 of the Civil Services (Classification, Control and Appeal) Rules clearly indicates that dismissal or removal is a punishment. This is imposed on an officer as a penalty. It involves loss of benefit already earned. But an officer who is compulsorily retired does not lose any part of the benefit that he has earned. On compulsory retirement he will be entitled to the pension etc., that he has actually earned. There is no diminution of the accrued benefit. (Paras 17,18) A compulsory retirement therefore does not amount to dismissal or removal and, therefore, does not attract the provisions of Article 311 of the Constitution or of Rule 55 and Note 1 to Art. 465 A of the Civil Service Regulations is not repugnant to Art.311."
50.In the instant case, as against the petitioner (formerly Principal District Judge, Dindigul) and two others Thiru R.Alageswaran, Sheristadar, Principal District Court, Dindigul and Thiru N.Raghunathan, Assistant, Principal District Court, Dindigul, three petitions and two telegrams were received and on the basis of the complaints, a detailed enquiry was ordered and that the Additional Superintendent of Police, Vigilance Cell (Judicial), Madurai Unit has conducted enquiry into the allegations and on the report of the Investigating Officer, the then Honourable Chief Justice of this Court has directed the Special Officer, Vigilance Cell (Judicial), High Court, Madras to conduct a discreet enquiry into the allegations and accordingly, the Special Officer, Vigilance Cell (Judicial) has proceeded to Dindigul on 3.5.2000 and examined and recorded the statements of 13 witnesses and collected the xerox copies of relevant records and submitted a Report on 06.06.2000 stating that the allegations against the petitioner (formerly Additional District Judge-cum-Chief Judicial Magistrate and Principal District Judge, Dindigul) and R.Alageswaran, formerly Sheristadar, Additional District Judge-cum-Chief Judicial Magistrate and now Sheristadar, Principal District Court, Dindigul and N.Raghunathan, Assistant, Principal District Court, Dindigul were substantiated.
51.The Work done Statements of the petitioner as II Additional District Judge, Tiruchirapalli for the period from 01.01.1998 to 06.03.1998 for two months runs as follows:
Norms AFT Work Turned out Shortfall Excess 6 S.C. Per * 14 A.S. Month S.C. - 8 * 11 1 --
17 MCOPs. e.q.to - 3 * Civil Appeal - 14* 15 Crl.Appeal eq.to - 5* 22 6 --
2 Crl R.Ps. eq.to - 1* 5 C.M.As. eq.to - 2* Norms : Below Note: The Officer has also disposed of 2 OPs.
52.For the period from 09.03.1998 to 31.12.1998 as Additional District Judge-cum-Chief Judicial Magistrate, Dindigul (8 months), the out turn of work of the petitioner is as follows:
Norms AFT Work Turned out Shortfall Excess 6 S.C. Per * 14 A.S. Month S.C. - 26* 59 -- 11 165 MCOPs. e.q.to - 33* A.S - 26* 6 Crl.Appeal eq.to - 2* 29 83 --
3 Crl Revision eq.to - 1* Norms : Excess 11 Sessions Shortfall 83 Appeal Suits Note: The Officer has also disposed of 10 M.P.s
53.For the period from 01.01.1999 to 06.12.1999 the out turn of the work of the petitioner as Additional District Judge-cum-Chief Judicial Magistrate, Dindigul (8 months) is mentioned below:
Norms AFT Work Turned out Shortfall Excess 6 S.C. Per * 14 A.S. Month S.C. - 25* 68 -- 14 213 MCOPs. e.q.to - 43* A.S - 32* C.A. - 3* 10 C.M.As. eq.to - 3* 39 87 --
4 Crl.R.P. eq.to - 1* Norms : Excess 14 Sessions Shortfall 87 Appeal Suits Note: The Officer has also disposed of 66 C.M.P.s
54.For the period from 01.01.2000 to 02.05.2000 the out turn of the work of the petitioner as Principal District Judge, Dindigul (4 months) is hereunder:
Norms AFT Work Turned out Shortfall Excess 6 S.C. Per * 12 A.S. Month S.C. - 7* 22 2 --
75 MCOPs. e.q.to - 15*
A.S - 29*
7 Crl.Appeal eq.to - 2* 32 16 --
2 Crl.R.Ps. eq.to - 1*
Norms : Below
Note:1.The Officer has also disposed of 7 Ops. And 15 CMPs.
2.The Officer was on other duty for 6 days.
3.There was Advocate's Boycott for 29 days.
55.For the period from 22.06.2000 to 31.12.2000 the work done statements of the petitioner as Additional District Judge, Pondicherry at Karaikal (for 6 months) is as follows:
Norms AFT Work Turned out Shortfall Excess 6 S.C. Per * 14 A.S. Month O.S. - 14* S.C. - 3* 33 3 --
80 MCOPs. e.q.to - 16*
A.S - 8*
41 Crl.Appeal eq.to - 14* 22 62 --
Norms : Below
Note: The Officer has also disposed of 1 CMA, 3 RCAs., 2 LAOPs., 1 GOP, 2 Ops., 4 MOPs., 2 E.Ps., 1 Crl.R.P., 62 Crl.M.P.s.
56.For the period from 01.01.2001 to 31.12.2001 the out turn of the work of the petitioner as Additional District Judge, Pondicherry at Kariakal (10 months) is as follows:
Norms AFT Work Turned out Shortfall Excess
6 S.C. Per *
14 A.S. Month O.S. - 31*
S.C. - 2* 56 4 --
113 MCOPs. e.q.to - 23*
A.S - 31*
2 Crl.R.P. eq. to. - 1* 45 95 --
35 Crl.Appeal eq.to - 12*
2 CMAs eq.to - 1*
Norms : Below
Note: The Officer has also disposed of 6 RCAs., 4 LAOPs., 7 GAOPs., 4 other Ops., 3 MOPs., 1 Succession OP., 10 E.Ps., and 1 ESIOP.
57.For the period from 01.01.2002 to 31.12.2002 the work done statement of the petitioner as Additional District Judge, Pondicherry at Kariakal (10 months) is mentioned below:
Norms AFT Work Turned out Shortfall Excess
6 S.C. Per *
14 A.S. Month O.S. - 43*
S.C. - 6* 96 -- 36
233 MCOPs. e.q.to - 47*
A.S - 16*
13 Crl.R.Ps. eq.to. - 3* 30 110 --
27 Crl.Appeal eq.to - 9*
7 CMAs eq.to - 2*
Norms : Excess 36 Sessions
Shortfall 110 Appeal Suits
Note:1.The Officer has also disposed of 13 RCAs.,25 LAOPs.,
6 GOPs., 4 Ops., 5 MOPs., 1 SOP., 3 AOP., 26 E.Ps.,
9 I.D. Cases, 1 Spl.C.C. And 1 E.S.I.OP.
2.The Officer was on other duty for 14 days.
58.In the Confidential Report for the period from 01.01.1998 to 06.03.1998 and 09.03.1998 to 31.12.1998 in respect of the petitioner, it was recorded by the Honourable Portfolio Judge as a 'Good Officer' and 'Very Good Officer'.
59.In the Annual Confidential Report for the year 1999 (01.01.1999 to 06.12.1999) in respect of the petitioner the following were recorded by the Honourable Portfolio Judge.
01-01-1999 to 06-12-1999 I) Promptitude in disposal of cases:-
(a) Current * "has not reached the (b) Old * norms at all". * II)Reputation as to:- (a) Honesty * "Many complaints are (b) Integrity * being received. He (c) Impartiality * should try to not to give rooms for the complaints". sd/- K.G.J., 20.12.2001. "Seen" sd/- C.J., 24.01.2001.
The said adverse remarks were also communicated to the petitioner on 31.01.2001.
60.In regard to the period from 01.01.2000 to 02.05.2000 in the Confidential Report, the following entries were made in the respective column by the Portfolio Judge.
01-01-2000 to 02-05-2000 I) Promptitude in disposal * "not upto the of cases:- * expectation". * (a) Current * (b) Old * II)Reputation as to:- * "Two departmental *enquiries are pending". (a) Honesty * (b) Integrity * (c) Impartiality * III)Overall view * "Not bad". sd/- K.G.J., 25-10-2001. "I agree". sd/- C.J., 30-10-2001.
The adverse remarks against the petitioner were communicated on 31.10.2001.
61.In respect of the period from 22.6.2000 to 31.12.2000, in the Confidential Report pertaining to the petitioner the following were recorded.
22-6-2000 to 31-12-2000 I)Reputation as to:- * * (a) Honesty *"To be watched". (b) Integrity * (c) Impartiality * (II)Overall view * "Satisfactory". sd/- A.S.V.J., "Seen". sd/- C.J., 21-06-2001. Adverse remarks communicated on 22-06-2001.
62.For the period from 01.01.2001 to 30.09.2001 in the Annual Confidential Report of the petitioner the following entries were made.
01-01-2001 to 30-09-2001 I)Reputation as to:- *"Complaints are being *received. To be closely (a) Honesty *watched". (b) Integrity * (c) Impartiality * (II)Overall view * "Satisfactory. But to be closely watched". sd/- A.S.V.J., 23-12-2002. sd/- C.J.
63.From 01.10.2001 to 31.12.2001 the Annual Confidential Report speaks of satisfactory entry.
64.For the period from 01.01.2002 to 31.12.2002 in the Annual Confidential Report the following entries were made in respect of the petitioner.
01-01-2002 to 31-12-2002 I) Supervision and Control:-
(a) on subordinate Judges *
(b) on Office Staff * * "Satisfactory subject II) Attitude towards:- * to the departmental * enquiry".
(a) Superiors * (b) Subordinates * (c) Colleagues * III)Overall View * "Satisfactory". Sd/- P.D.D.J., 11-04-2003. sd/- C.J.
65.It appears that as against the petitioner a discreet enquiry was ordered to be made by the Vigilance in respect of the complaint in R.O.C.No.382 of 003 made by one Sekar of Karikkal on the allegation of receipt of huge bribe and on the complaint of R.Radhakrishnan, Pondicherry in R.O.C.No.446 of 2003 on the allegation of passing unjust order in S.C.2 of 2002 and 9 of 2002.
66.When the petitioner was to attain 50 years of age during the month of June 2004, his case came to be reviewed under F.R.56(2). When the papers were placed before the Honourable Administrative Committee by the Registry, the Honourable Mr.Justice M.Chockalingam of this Court, who conducted the departmental enquiry against the petitioner, submitted his findings holding that out of 8 charges, 5 charges were proved and in respect of another departmental enquiry against the petitioner the finding of the Enquiry Officer, the Honourable Mr.Justice N.V.Balasubramanian was awaited. Later, on 31.3.2005 the Enquiring Judge, the Honourable Mr. Justice N.V.Balasubramanian submitted his findings [in regard to the charge framed against the petitioner to the effect that while he was functioning as Principal District Judge, Dindigul, he did not pass any order on the suo motu request made by the then District Munsif-cum-Judicial Magistrate, Vedasandur for the transfer of O.S.No.231 of 1999 from District Munsif-cum-Judicial Magistrate's Court, Vedasandur to the Subordinate Judge's Court, Dindigul] that the charge framed against the petitioner was not proved and further, the Enquiring Judge also observed that he had rendered this finding without prejudice to the order not permitting the delinquent officer to continue in service beyond 50 years. Since the petitioner has filed W.P.No.34562 of 2007 challenging the Departmental Enquiry findings submitted against him, we are not traversing about the same in detail in the present writ petition wherein a challenge is made to the order of compulsory retirement of the petitioner.
67.The Honourable Administrative Committee of this Court, in its Meeting held on 20.04.004, has recorded the following Minutes on the subject of review under F.R.56(2) of the case relating to the petitioner who attained the age of 50 years during the month of June 2004 and the same runs as follows:
"The Committee met and extensively discussed the matter. Having regard to the reasons given by the learned Judge Mr.Justice M.Chockalingam, on facts as also the discussion of the evidence of the witnesses, the Committee is of the considered opinion that the finding of the learned Judge is fit to be accepted. Accordingly, the Committee hereby accepts the report.
The matter relating to the extension or otherwise of Mr.R.Balasubramnian, Principal District Judge, Pudukottai, who is attaining the age of 50 years, under F.R.56(2) came up for consideration during the last meeting on 22.3.2004 and was deferred for the time being. Having perused the finding of the learned Judge and after verifying the conduct of the officer and his Annual Confidential Report and all other relevant records, as per guidelines prescribed in G.O.Ms.No.623, dated 14.7.1993, the Committee is of the opinion that Mr.R.Balasubramanian, Principal District Judge, Pudukottai, is found not to be eligible to continue any further beyond the age of 50 years and as such, he is retired compulsorily in consonance with F.R.56(2) as his continuance in service beyond 50 years is against public interest.
The Registrar General is directed to take steps accordingly."
68.The Full Court, in its Minutes on 21.4.2004, has resolved to approve the minutes of the Administrative Committee dated 20.4.2004.
69.The Registrar General of this Court, in R.O.C.No.58 2004 Con-B1, has issued a Notification No.80/2004 stating that consequent to the orders of the Government in G.O.Ms.No.893, Public (Special A) Department, dated 24.06.2004 compulsorily retiring the petitioner from service in public interest under F.R.56(2), the petitioner was relieved from the Tamil Nadu State Judicial Service with effect from 24.6.2004 Afternoon and the petitioner was informed that if he so desires, he may prefer a Review Petition, within one month from the date of receipt of the order, to the Government. The petitioner filed a Review Petition on 17.7.2004 and the Administrative Committee in its Meeting held on 14.12.2004 has resolved to recommend to the Government to reject the Review Petition. The Government in its letter No.2730/2004-5 dated 18.08.2005 has accepted the view of the High Court and rejected the Review Petition. Since the Government has accepted the view of the High Court, being the Competent Authority in the matter, there is no necessity for the Government to pass a reasoned order while rejecting the review claim petition.
70.Therefore, on a careful consideration of the records pertaining to the petitioner, the decision of Administrative Committee and as approved by the Full Court and upon consideration of entries recorded in the Confidential Reports etc. with which we are in complete agreement with the view taken and hold that the order of the first respondent, in G.O.Ms.No.893, Public (Special A) Department, dated 24.6.004 compulsorily retiring the petitioner as Principal District Judge, Pudukottai from service on 24.6.2004 in public interest, does not require any interference. Further more, no stigma of any sort has also been attached to the impugned order.
71.In regard to the plea of the petitioner that the impugned order of compulsory retirement dated 26.4.2004 is in violation of clause 9 of Appendix I Consolidated Instructions issued relating to compulsory retirement under F.R.56(d), it is to be pointed out that though instruction No.9 refers to 3 months' notice, salary should be served on the individual in person on the date of issue of the compulsory retirement order etc., in the instant case on hand, the bill for 3 months' notice salary has been prepared by the Registry of this Court on 25.6.2004 and the bill was presented to the Pay and Accounts Office, Chennai on 25.6.2004. The cheque issued by the Pay and Accounts Office, High Court, Chennai dated 30.6.2004 for Rs.93,240/- in favour of the petitioner was sent to the Principal District Judge (In-charge), Pudukottai on 01.7.2004 and the same was received by the petitioner on 06.7.2004 as per the communication in D.No.3176 dated 06.7.2004 addressed to the Registry and therefore, the administrative time period from 25.6.2004 till 01.7.2004 on the day when the 3 months' salary cheque was sent by the High Court to the Principal District Judge (In-charge), Pudukottai and later received by the petitioner on 06.7.2004 cannot be construed as a violation in any manner and moreover, the said instructions of clause 9 to F.R.56(d) as per G.O.No.623, dated 14.7.1983 are at best only directory in nature and not a mandatory one and therefore, the contra plea of the petitioner in this regard that there is violation of principles of Natural Justice is outrightly rejected.
72.As regards the contentions of the petitioner that there was violation of principles of natural justice etc., we are of the considered view that these cannot be permitted to be urged in a case of compulsory retirement and inasmuch as the decision of a compulsory retirement is an administrative one based on bona fide subjective satisfaction of the authority concerned and in the present case on hand, such decision was arrived at based on relevant materials and on judicious considerations and hence, there is no scope for interference with the order of compulsory retirement.
73.Suffice it for this Court to point out that on the basis of available materials on record, the Administrative Committee of this Court and the Full Court on being subjectively satisfied in their opinion have come to a right conclusion in observing that the petitioner is found not to be eligible to continue any further beyond the age of 50 years and as such, retired him compulsorily in consonance with F.R.56(2) as his continuance in service beyond 50 years is against public interest and later the recommendations of the High Court has been accepted by the Government and as a matter of fact, in an order of premature retirement viz., Compulsory Retirement, there is no obligation on the part of the authorities to comply with the principles of Natural Justice and indeed, the order in G.O.Ms.No.893, Public (Special A) Department, dated 26.4.2004, compulsorily retiring the petitioner from service is not in the nature of punishment and it is not a stigma on him, in our considered opinion. Further, on account of the compulsory retirement of the petitioner under the Rules, he does not lose his retirement benefits. Looking at from any point of view, the writ petition filed by the petitioner is devoid of merits and the same fails.
In the result, the Writ Petition is dismissed, leaving the parties to bear their own costs.
Sgl To
1.The Chief Secretary to Government, The Government of Tamil Nadu Public (Special A) Department, Secretariat Fort St. George, Chennai 600 009.
2.The Registrar General, The High Court of Judicature at Madras, Chennai 600 104