S.Ulaganathan v. The Registrar General, High Court of Madras, Chennai-104 & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 23.1.2009CORAM:THE HONOURABLE MR.S.J.MUKHOPADHAYA, THE ACTING CHIEF JUSTICEANDTHE HONOURABLE MR.JUSTICE V.DHANAPALANWrit Petition No.6446 of 2008& M.P.Nos.1 and 2 of 2008S.Ulaganathan .. Petitionervs.1. The Registrar General, High Court of Madras, Chennai-104.2. The Government of Tamilnadu, rep. by its Secretary, Home (Courts-I) Department, Secretariat, Chennai-600 009. .. RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia, praying for issuance of a Writ of Certiorarified Mandamus,after calling for the records relating to the order of the secondrespondent in G.O(2D).No.806, Home (Courts-1), dated 3.12.2007 andquash the same and consequently direct the first respondent toreinstate the petitioner in service with backwages, continuity ofservice and all other attendant benefits.For Petitioner : Mr.S.T.VaradarajuluFor Respondents: Mr.R.Muthukumarasamy, Senior Counsel for Mr.A.Jeenasenan for R-1 Mr.D.Sreenivasan, Addl.G.P. for R-2ORDERTHE HONOURABLE THE ACTING CHIEF JUSTICEIn this Writ Petition, the petitioner, a Civil Judge (JuniorDivision), has challenged G.O.(2D).No.806, dated 3.12.2007 issued byHome (Courts-1) Department, Government of Tamil Nadu, whereby he has https://hcservices.ecourts.gov.in/hcservices/ been compulsorily retired from service under Fundamental Rule 56(2)(for short, "FR.56(2)") on the recommendation of the Full Court ofthis Court. In view of the aforesaid order of compulsory retirement,the order of suspension has also been revoked.2. The petitioner was appointed as Civil Judge (JuniorDivision) on 10.12.1999 and posted as Additional District Munsif andserved at different places. While he was functioning as PrincipalDistrict Munsif-cum-Judicial Magistrate-I, Cheyyar, on 1.7.2003,during a surprise visit made by the Principal District Judge,Tiruvannamalai, 13 unfilled remand warrants signed by the Magistrateand 7 unfilled bail bonds signed by the petitioner-Magistrate, wereseized from the almirah (cupboard) of the petitioner's Head Clerk.The said Head Clerk was asked to submit explanation by the PrincipalDistrict, Judge. As the Principal District Judge was not satisfiedwith the explanation, departmental proceedings were initiatedagainst the Head Clerk by framing charges against the Head Clerk,under Rule 17(b) of the Tamil Nadu Civil Services (Discipline andAppeal) Rules on 24.9.2003 and on enquiry conducted by the DistrictMunsif, Arni, it was held that the charges were not made out againstthe Head Clerk.3. In regard to the said incident, a report dated 2.7.2003 wasforwarded by the Principal District Judge, Tiruvannamalai to thisCourt, whereinafter, the petitioner was asked to submit explanationon 4.5.2006. As the explanation submitted was not satisfied, thisCourt, on the Administrative Side, ordered to place him undersuspension in contemplation of the departmental proceedings. Chargeproceedings were issued on 9.6.2007, to which the petitionersubmitted written statement of defence on 2.7.2007. The explanationby way of written statement was considered by the AdministrativeCommittee of this Court, which ordered to proceed with the enquiry,on 18.7.2007, pursuant to which, the Principal District Judge,Villupuram, started enquiry. 4. While the proceedings were going on, cases of JudicialOfficers, which were ripe for review under F.R.56(2) on attainingthe age of 50 years, were considered by the Administrative Committeeof this Court. The Administrative Committee of this Court, havingnoticed the records of service of different officers, while allowingfour Officers to continue in service, so far as the petitioner isconcerned, in its meeting held on 4.10.2007, recommended tocompulsorily retire the petitioner from service under F.R.56(2). Therecommendation along with the other records of all the officers,i.e. those who are allowed to continue and the petitioner, wereplaced before the Full Court of this Court, which in its meetingheld on 29.10.2007, decided as follows:"Considered. It is resolved to accept thedecision of the Administrative Committee." https://hcservices.ecourts.gov.in/hcservices/ On approval of the Full Court, the Government of Tamil Nadu, beingthe appointing authority of the writ petitioner, was addressed bythis Court, vide letter dated 31.10.2007, pursuant to which, theimpugned G.O.(2D).No.806, Home (Courts-1) Department, dated3.12.2007 was issued. The petitioner was relieved from services on18.12.2007, after payment of three months' salary. 5. From the counter affidavit filed by first respondent-Registrar General of this Court, it appears that the petitionerfiled a Review Petition on 4.1.2008, which had been forwarded on11.1.2008 to the State Government by this Court through itsAdministrative Side. The State Government, in their letter dated22.2.2008, have sought for remarks of this Court. In the meanwhile,the Writ Petition was preferred. 6. Learned counsel for the petitioner submitted that F.R.56(2)was made as a tool to compulsorily retire the petitioner and it is ashort-cut method to avoid departmental enquiry. In fact, thebackground for such retirement is disciplinary proceedings as wasinitiated and pending against the petitioner since 2006. Accordingto the learned counsel appearing for the petitioner, the compulsoryretirement is by way of punishment, without affording proper to thepetitioner. Learned counsel also placed reliance on the decisions ofthe Supreme Court.7. It has been brought on record all the facts including thefact relating to the departmental proceedings. They were highlightedby learned Senior Counsel appearing on behalf of first respondent,who submitted that the petitioner has been compulsorily retired fromservice at the time of assessment of the records of JudicialOfficers who attained the age of 50 years and the decision had beenpassed on the basis of the records without being influenced by thepending proceedings. Learned Senior Counsel appearing for the firstrespondent also relied on the decisions of the Supreme Court.8. We have heard the learned counsel appearing for the partiesand noticed the rival contentions. On the direction of the Courtoriginal records/reports relating to the proceedings, etc., wereproduced. Before looking into the records, it is desirable to noticethe ratio laid down by the Supreme Court in regard to compulsoryretirement.9. In the case of "Baikuntha Nath Das vs. The Chief DistrictMedical Officer, Baripada" reported in AIR 1992 SC 1020, theSupreme Court held that uncommunicated adverse remarks can beconsidered for compulsory retirement and that the circumstances byitself cannot be the basis for interference, because, the principlesof natural justice have no place in the context of an order ofcompulsory retirement. The nature of function to compulsorily retireis not quasi-judicial in nature and as the action has to be taken on https://hcservices.ecourts.gov.in/hcservices/ the subjective satisfaction of the Government, there is no room forimporting the facet of natural justice. The Supreme Court further held that the High Court or theSupreme Court could not examine the matter as an appellate Court andmay interfere only if they are satisfied that the order passed is(a) mala-fide; or (b) that it is based on no evidence; or (c) thatit is arbitrary in the sense that no reasonable person would formthe requisite opinion on the given material, in short, if it isfound to be a perverse order.10. So far as adverse entries in the confidential reports, areconcerned, whether the reporting authority to give specificincidents to enable adequate representation and whether anopportunity to be heard is to be given, where an adverse entryamounts to censure, fell for consideration before a ConstitutionBench of the Supreme Court in the case of "R.L.Butail vs. Union ofIndia", reported in 1970 (2) SCC 876. In the said case, the SupremeCourt held that a confidential report is intended to be a generalassessment of work performed by employee subordinate to thereporting authority and such reports are maintained for the purposeof serving as data of comparative merit when questions of promotion,confirmation, etc., arise. Such reports are not ordinarily tocontain specific incidents upon which assessments are made except incases where, as a result of any specific incident a censure orwarning is issued and that such warning has to be an order to bekept in personal file of the employee. The Supreme Court furtherproceeded to hold that the rule neither provided for nor requiredany opportunity to be given to the employee to be heard before anyadverse entry is made. It is not equivalent to imposition ofpenalty.Normally, Annual Confidential Reports (ACR) are maintained bythe employer and in case where punishment, etc., is inflicted afterfollowing the procedure and notice to the charged employee, theyare kept on record, commonly known as Permanent Confidential Report(PCR).So far as the present case of the petitioner is concerned, whathas been brought on record is the ACR of the petitioner of differentperiods and not the PCR and therefore, the argument as advanced bylearned counsel for the petitioner that specific incidents shouldhave been mentioned in the ACR or that he should have been givenopportunity, cannot be accepted and such submission is rejected.11. The validity of compulsory retirement, when fell forconsideration before the Supreme Court in the case of "State ofGujarat vs. Umedbhai M.Patel" reported in 2001 (3) SCC 314 = 2001(II) LLJ 1140, the Supreme Court noticed earlier decision renderedin the case of "State of Orissa vs. Ram Chandra Das" reported in https://hcservices.ecourts.gov.in/hcservices/ 1996 (5) SCC 331, wherein the Supreme Court reiterated "that theGovernment is empowered and would be entitled to compulsorily retirea government servant, in public interest, with a view to improveefficiency of administration or to weed out the people of doubtfulintegrity or, who are corrupt, but sufficient evidence was notavailable to take disciplinary action in accordance with the rulesso as to inculcate a sense of discipline in service. But theGovernment, before taking such decision to retire a governmentemployee compulsorily from service, has to consider the entirerecord of the government servant, including the latest report." At paragraph 11 of the judgment in the case of "UmedhbhaiM.Patel" (supra), the principles were summarised as follows:"11. The law relating to compulsory retirementhas not crystallised into definite principles,which could be broadly summarised thus:(i) whenever the services of a public servantare no longer useful to the general administration,the officer can be compulsorily retired for thesake of public interest.(ii) Ordinarily, the order of compulsoryretirement is not to be treated as a punishmentcoming under Article 331 of the Constitution.(iii) For better administration, it isnecessary to chop off dead wood, but the order ofcompulsory retirement can be passed after havingdue regard to the entire service record of theofficer.(iv) Any adverse entries made in theconfidential record shall be taken note of and begiven due weightage in passing such order.(v) Even uncommunicated entries in theconfidential record can also be taken intoconsideration.(vi) The order of compulsory retirement shallnot be passed as a short cut to avoid departmentalenquiry when such course is more desirable.(vii) If the officer was given a promotiondespite adverse entries made in the confidentialrecord, that is a fact in favour of the officer. https://hcservices.ecourts.gov.in/hcservices/ (viii) Compulsory retirement shall not beimposed as a punitive measure."12. F.R.56(c) of the U.P. Fundamental Rules, which provides forcompulsory retirement of a Government servant and similar to F.R.56(2) of the Tamil Nadu Fundamental Rules, fell for considerationbefore the Supreme Court in the case of "State of U.P. and othersvs. Vijay Kumar Jain" reported in 2002 (3) SCC 641. Referringearlier decisions in the case of "Shyamlal vs. State of U.P."reported in AIR 1954 SC 369, it was held that an order compulsoryretirement is neither a punishment nor is any stigma attached to it.13. The case of compulsory retirement of U.P. Judicial Officersagain fell for consideration before the Supreme Court in "NawalSingh vs. State of U.P." reported in 2003 (8) SCC 117. F.R.56 ofU.P. Fundamental Rules was noticed. In the said case, the SupremeCourt observed as follows:"2. At the outset, it is to be reiteratedthat the judicial service is not a service inthe sense of an employment. Judges aredischarging their functions while exercisingthe sovereign judicial power of the State.Their honesty and integrity is expected to bebeyond doubt. It should be reflected in theiroverall reputation. Further, the nature ofjudicial service is such that it cannot affordto suffer continuance in service of persons ofdoubtful integrity or who have lost theirutility. If such evaluation is done by theCommittee of the High Court Judges and isaffirmed in the writ petition, except in veryexception circumstances, this Court would notinterfere with the same, particularly becausethe order of compulsory retirement is based onthe subjective satisfaction of the authority."14. From the records of the petitioner, as was produced byfirst respondent, it will be evident that number of times, adverseremarks were recorded against the petitioner by the immediatecontrolling Officer/Principal District Judge and communicated to himparticularly with regard to his reputation, i.e. honesty andintegrity, which were not altered by the Portfolio Judge of thisCourt, who ordered to improve. Some of them are quoted hereunder:For the period from 1.1.2000 to 11.8.2000: I.Supervision and control: (a) On Subordinate Judges:Poor (b) On Office Staff :Poor https://hcservices.ecourts.gov.in/hcservices/ II.Attitude towards: (a) .... (b)Subordinates : Poor (c)Colleagues : Poor III.Conduct and Dignity: (a) Inside Court : Poor (b) Outside Court : Poor IV.Outlook towards: (a) Members of the Bar : Poor (b) Public : Poor V.Reputation as to: (a) Honesty : Worse (b) Integrity : Worse (c) Impartiality : Worse VI.Over-all view : PoorFor the period from 12.8.2000 to 31.10.2000: I.Supervision and control: (a) On Subordinate Judges : Poor (b) On Office Staff : Poor II.Attitude towards: (a).... (b)Subordinates : Poor (c)Colleagues : Poor III.Conduct and Dignity: (a) Inside Court : Poor (b) Outside Court : Poor IV.Outlook towards: (a) Members of the Bar : Poor (b) Public : Poor V.Reputation as to: (a) Honesty : Poor (b) Integrity : Poor (c) Impartiality : Poor VI.Over-all view : Nil https://hcservices.ecourts.gov.in/hcservices/ For the period from 1.1.2001 to 30.9.2001: I.Supervision and control: (a) On Subordinate Judges : - (b) On Office Staff : Poor II.Attitude towards: (a).... (b)Subordinates : - (c)Colleagues : Poor III.Conduct and Dignity: (a) Inside Court : Poor (b) Outside Court : Poor IV.Outlook towards: (a) Members of the Bar : Poor (b) Public : Poor V.Reputation as to: (a) .... (b) Integrity : Poor (c) Impartiality : Poor VI.Over-all view : Poor For the period from 1.10.2001 to 30.11.2001: I.Supervision and control: (a) On Subordinate Judges : - (b) On Office Staff : Poor II.Attitude towards: (a).... (b)Subordinates : - (c)Colleagues : Poor III.Conduct and Dignity: (a) Inside Court : Poor (b) Outside Court : Poor IV.Outlook towards: (a) Members of the Bar : Poor (b) Public : Poor V.Reputation as to: (a) .... (b) Integrity : Poor https://hcservices.ecourts.gov.in/hcservices/ (c) Impartiality : Poor VI.Over-all view : PoorFor the period from 1.2.2003 to 28.12.2003: Special remarks, if any : To be watched. 15. Those adverse remarks were communicated to the petitionerand subsequently they have reached finality. From the adverseremarks communicated, it will be evident that not only thesupervision and control towards subordinates and colleagues, conductand dignity-inside and outside the Court, outlook towards themembers of the Bar and public, are poor, but also the reputation asto the honesty, integrity and impartiality and the over-all view ofthe Officer for the aforesaid years, as written by the ControllingOfficer, as was accepted by the Portfolio Judge, who ordered toimprove, which reached finality, disclose the nature of the Officer.16. So far as the departmental enquiry is concerned, we findthat the Administrative Committee/Full Court of this Court had nottaken into consideration the charge as contained in the saidproceedings except that the petitioner was under suspension and theproceedings were pending. It is not that the individual case of thepetitioner was only considered under F.R.56(2), but also the casesof all the other Officers in the Judicial Service who attained theage of 50 years, review of which is being done every year withregard to all such Officers. Taking into consideration the recordsof service, while the Administrative Committee of this Court allowedthe other Judicial Officers to continue, it recommended tocompulsorily retire the petitioner from service, which was acceptedand recommended by the Full Court and finally accepted by the StateGovernment, which issued the impugned G.O.(2D).No.806, Home (Courts-I) Department, dated 3.12.2007.17. Thus, we come to a definite conclusion that the order ofcompulsory retirement of the petitioner was just and proper, thesame being in accordance with law.18. In view of the persuasion of the learned counsel appearingfor the petitioner, we have also called for and gone through therecords of the departmental proceedings. From therecords/departmental proceedings, we find that the petitioner wascharge-sheeted for the allegation that while he was functioning asPrincipal District Munsif-cum-Judicial Magistrate-I, Cheyyar, usedto put signature in the blank remand and warrant forms and bailorder forms and hand over them to Head Clerk, so that the blankforms could be used in the absence of the petitioner from the https://hcservices.ecourts.gov.in/hcservices/ Headquarters during the weekends and on 1.7.2003 at 4.00 p.m., thethen Principal District Judge, Tiruvannamalai, when made a surprisecheck of the room of the Headclerk Mr.Ragunathan in the Office ofthe Principal District Munsif-cum-Judicial Magistrate-I, Cheyyar,seized such 13 blank remand warrant forms and 7 blank bail orderforms signed by the petitioner from the steel almirah (cupboard).When the petitioner was questioned by the District Judge,Tiruvannamalai of the seizure of the blank forms, he informed theDistrict Judge that he (petitioner) handed over those signed blankforms to the Headclerk so that they could be used when need arose atthe weekends at the time petitioner would be out of station. Thiswas alleged to be commission of acts of serious misconduct, misuseand abuse of power, dereliction of duty and unbecoming of a JudicialOfficer. Mr.N.Retnaraj, Principal District Judge, Villupuram,District, Villupuram was appointed as Enquiry Officer. By the timethe Administrative Committee and the Full Court of this Court hadtaken decision to compulsorily retire the petitioner from serviceunder F.R.56(2) in October 2007, the Enquiry Officer had notsubmitted any report. Subsequently, the Enquiry Officer sent thereport dated 27.11.2007 to this Court. From the said report dated27.11.2007, we find that on the basis of over-all evidence, bothoral and documentary, and giving opportunity to the petitioner, thecharge has been proved against the petitioner-delinquent officer.We are not expressing any opinion on the question as to what orderwould have been passed by this Court in the departmentalproceedings, if the petitioner would not have been compulsorilyretired from service. 19. We find no merits in the Writ Petition, which isaccordingly dismissed, but there shall be no order as to costs. TheMiscellaneous Petitions are closed.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarcsTo1. The Registrar General, High Court of Madras, Chennai-104.2. The Secretary to Government of Tamil Nadu, Home (Courts-I) Department, Secretariat, Chennai-600 009.+ 1 c.c. to M/s. A. Jenasenan, Advocate. S.R.No.3257.+ 1 c.c. to The Government Pleader. S.R.No.3591. Order inWrit Petition No.6446 of 2008KJI (CO)GSK 03.02.2009.