N.Kannaki v. Principal Secretary to Govt. Home (CourtsI.A) Department Fort St. George, Chennai –

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 04.02.2008CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE M.VENUGOPALW.P. NO. 28259 OF 2007N.Kannaki.. Petitioner- Vs -1. The State of Tamil Nadu rep. by The Principal Secretary to Govt. Home (CourtsI.A) Department Fort St. George, Chennai – 9.2. The High Court of Judicature at Madras, rep. by The Registrar General High Court, Madras – 104... Respondents Writ Petition filed calling for the records relating to theproceedings of the first respondent in G.O.(2D) No. 586 Home (CourtsIA) Department dated 03.10.2006 and the Notification of the SecondRespondent in Notification No. 194/2006 (R.O.C. No.16/2006 Con.B1)dated 09.10.2006.For Petitioner: Mr. AR.L.Sundaresan, SC, for Ms. AL.GandhimathiFor Respondents: Mr. D.Sreenivasan, AGP for R-1 Mr. R.Muthukumaraswamy, SC, for R-2 Mr. A.JenasenanORDERS.J.MUKHOPADHAYA, J.The petitioner was in the judicial service of the State and wasfunctioning as Principal District Munsif, Poonamallee, (Civil Judge,Jr. Division). She having attained the age of 50 years, her casealongwith others was reviewed under Fundamental Rules 56 (2)(hereinafter referred to as 'FR' for short). The administrativecommittee of the High Court, having found the petitioner not fit forcontinuance in service on attaining age of 50 years, the matter wasplaced before the Full Court of Madras High Court, which decided toretire her from service in public interest. The recommendationhaving accepted and communicated, the petitioner has challenged G.O.2 (D) No.586 dated 3rd Oct., 2006, issued from the Home (Courts I.A.) https://hcservices.ecourts.gov.in/hcservices/ Department of the State of Tamil Nadu 'by the order of the Governor'.2. According to the petitioner, she was a practising advocate atMayiladuthurai for about 13 years, applied for the post of CivilJudge, Jr. Division, in the Tamil Nadu State Judicial Service inresponse to advertisement issued by the Tamil Nadu Public ServiceCommission in the year 1995 and having been selected, was appointedby the 1st respondent and assumed office on 27th Nov., 1995. Aftertraining she was posted as Judicial Magistrate No.3 at Thanjavur.She functioned as Civil Judge, Jr. Division/Judicial Magistrate FirstClass at Thanjavur; as 11th Judge, Court of Small Causes at Chennai;then as Judicial Magistrate at Trichirappalli; as Principal DistrictMunsif, Periyakulam; as Judicial Magistrate, Padmanabhapuram; asAssistant Editor of the High Court, Madras and as Principal DistrictMunsif, Poonamallee. During her career of service between 27th Nov.,1995 to 10th Oct., 2006, she had discharged her duties sincerely,efficiently and to the best of her ability and most of her judgmentsstated to have been upheld. She claims that she has good rapportwith all the members of the Bar and has always tried hard to keep thedecorum and dignity of judicial office.3. Further case of the petitioner is that during her 11 years ofservice, she has not been shown or allowed to have access to therecorded confidential reports, except for the period between 1st Jan.,2001 and 23rd July, 2001 and for the period 21st Jan., 2002 to 9th Dec.,2002, for which she was communicated with copies of recorded reports.The confidential reports for the entire period of her service otherthan the two short spells referred to above, according to her, shouldbe treated as good as having no adverse remarks.In respect of the first spell for the period from 1st Jan., 2001to 23rd July, 2001, the remark "Poor" has been recorded againstdifferent columns and "Below Average" has been recorded againstknowledge of law. She preferred representation against the adverseremarks, but it was not allowed. It is stated that there was noallegation made by any of the lawyers nor she was provided with anyprior notice. The confidential reports cannot be sustained in law,according to her submission and that cannot be entertained orconsidered for any purpose, being void abinitio.So far as the second spell from 21st Jan., 2002 to 9th Dec., 2002,is concerned, according to the petitioner, the only remark was thather conduct was not satisfactory, but judicial or otherwise, she hadperformed well as she disposed of large number of cases, which ismuch above the minimum disposal prescribed by the High Court.However, during the period between 15th Aug., 2002 and 1st Dec., 2002,as she had to proceed on medical leave, the disposal was below thenorms.4. Learned counsel for the petitioner submits that the adverseremarks as recorded in the character role constitute allegation; theyare not based on any evidence and no reason has been shown forrecording such report. It was further submitted that no departmentalenquiry was initiated against the petitioner for any allegation basedon vigilance reports and, thereby, she was not given any opportunity https://hcservices.ecourts.gov.in/hcservices/ to defend herself as required under Article 311 (2) of theConstitution of India. It was further submitted that the provisionof FR 56 (2) for compulsory retirement is not applicable in the caseof the petitioner, if the vigilance reports are taken into accountand the order of compulsory retirement has been passed castingstigma, without notice to the petitioner. It was further contendedthat only the adverse remarks of the last three years, i.e., 2003,2004 and 2005 should have been considered while reviewing her caseunder compulsory retirement in public interest. Adverse remarks madefor a short period, that too, prior to a period of three years cannotbe acted upon for retiring the petitioner in public interest. If theentire period of service is taken into consideration, the period ofadverse remarks would become negligible, rendering the order illegaland bad in law.5. While referring to her character role of 2001 and the impugnedorder passed by State of Tamil Nadu, learned counsel for thepetitioner submitted that the adverse remarks as recorded amounts tocasting aspersion on the petitioner; the order of compulsoryretirement having been passed on the basis of such character rolecannot be treated in public interest and being penal in nature isvoid abinitio. Further, according to him, the character role of twoshort periods are based on mere surmises and extraneous and,therefore, the impugned order based on such adverse remarks is nonest in the eye of law.Learned counsel for the petitioner relied on Supreme Courtdecision in Ram Ekbal Sharma – Vs – State of Bihar & Anr. reportedin 1990 (2) LLJ 601 (SC). In the said case, the Supreme Courtdecided as to when and where the court could lift the veil ofsecrecy, if order suggests to be innocuous, but found to have beenmade for other purpose.Reliance was also placed on decision in S.Ramachandra Raju - Vs– State of Orissa reported in AIR 1995 SC 111, wherein, taking intoconsideration the solitary adverse report against the employee forone year, the order of compulsory retirement was passed ignoring theearlier and subsequent reports showing the employee meritorious inservice. In the said case, the Supreme Court held that the entireservice record has to be taken into consideration before compulsoryretirement, more particularly, the latest, for forming opinion.Reliance was also placed on Supreme Court decision inR.K.Panjetha - Vs – Haryana Vidyut Prasaran Nigam Ltd. & Anr.reported in 2002 (10) SCC 590. Therein, the Court decided thequestion whether order of compulsory retirement under challenge waswas punitive or simplicitor. That was a case in which on the basisof a report and recommendation of a committee, the appointingauthority derived opinion that the integrity of the officer wasdoubtful and it was not in the interest of the company to keep theemployee in service. In this background, the Supreme Court held suchdecision as stigmatic and punitive, as not having based on servicerecord.6. Learned counsel for the 2nd respondent, High Court, submittedthat the total record of service of the petitioner, including the https://hcservices.ecourts.gov.in/hcservices/ character roles, which are good or adverse were placed before theadministrative committee by the order of the Hon'ble the ChiefJustice. The administrative committee, after taking intoconsideration the total records of service, including character roleand those adverse character role for which the petitioner wasinformed, came to its conclusion in its meeting dated 23rd Jan., 2006,not to recommend her name for further continuance in the judicialservice in public interest. Case of others, who had also crossed 50years of age were also considered along with the petitioner and onthe basis of their service record, recommendation was made to allowthem to continue in service. The matter was placed before the FullCourt of this Court by circulation of the minutes of theAdministrative Committee, and the Full Court accepted therecommendations of the Administrative Committee and decided to retirethe petitioner from service under FR 56 (2) in public interest.The original records, including the copies of the character role,etc., and the proceedings of the administrative committee and FullCourt were placed before the Court. Reliance was also placed on oneor other decision of the Supreme Court and this Court.7. We have heard the parties, noticed the rival contentions,original records placed by the respondents and gone through thedecisions rendered by the Supreme Court.8. Before determining the claim of the petitioner, it isdesirable to notice some of the observations made by the SupremeCourt with regard to adverse remarks, including uncommunicatedadverse remarks.In the case of Baikuntha Nath Das – Vs – The Chief DistrictMedical Officer, Baripada reported in AIR 1992 SC 1020, while theSupreme Court held that uncommunicated adverse remarks can beconsidered for compulsory retirement, further held that thecircumstances by itself cannot be a basis for interference, becauseprinciples of natural justice have no place in the context of anorder of compulsory retirement. The nature of function to compulsoryretire is not quasi-judicial in nature and as the action has to betaken on the subjective satisfaction of the Government, there is noroom for importing the facet of natural justice. The Supreme Courtfurther held that the High Court or the Supreme Court could notexamine the matter as an appellate court and may interfere only ifthey are satisfied that the order passed is (a) mala fide; or (b)that it is based on no evidence; or (c) that it is arbitrary in thesense that no reasonable person would form the requisite opinion onthe given material, in short, if it is found to be a perverse order.So far as the adverse entries in the confidential report isconcerned, whether the reporting authority to give specific incidentsto enable adequate representation and whether an opportunity to beheard is to be given, where an adverse entry amounts to censure, fellfor consideration before a Constitution Bench of Supreme Court inR.L.Butail – Vs – Union of India reported in 1970 (2) SCC 876. Inthe said case, the Supreme Court held that a confidential report isintended to be a general assessment of work performed by employeesubordinate to the reporting authority and such reports are https://hcservices.ecourts.gov.in/hcservices/ maintained for the purpose of serving as data of comparative meritwhen questions of promotion, confirmation, etc., arise. Such reportsare not ordinarily to contain specific incidents upon whichassessments are made except in cases where, as a result of anyspecific incident a censure or warning is issued and that suchwarning has to be an order to be kept in personal file of theemployee. The Supreme Court further proceeded to hold that the ruleneither provided for nor require any opportunity to be given to theemployee to be heard before any adverse entry is made. It is notequivalent to imposition of penalty.Normally Annual Confidential Reports (ACR) are maintained by theemployer and in case where punishment, etc., is inflicted afterfollowing the procedure and notice to the charged employee, they arekept on record, commonly known as Permanent Confidential Report(PCR). So far as the present case of petitioner is concerned, what hasbeen brought on record is ACR of the petitioner of different periodsand not PCR and, therefore, the argument as advanced by counsel forthe petitioner that specific incidents should have been mentioned inthe ACR or that she should have been given opportunity cannot beaccepted and such submission is rejected.The validity of compulsory retirement, when fell forconsideration before the Supreme Court in State of Gujarat – Vs –Umedbhai M.Patel reported in 2001 (3) SCC 314, the Supreme Courtnoticed earlier decisions rendered in State of Orissa – Vs – RamChandra Das (1996 (5) SCC 331), wherein Supreme Court reiterated"that the Government is empowered and would be entitled tocompulsorily retire a government servant, in public interest, with aview to improve efficiency of administration or to weed out thepeople of doubtful integrity or, who are corrupt, but sufficientevidence was not available to take disciplinary action in accordancewith the rules so as to inculcate a sense of discipline in service.But the Government, before taking such decision to retire agovernment employee compulsorily from service, has to consider theentire record of the government servant, including the latestreport." (Emphasis added).In the said case, the Supreme Court, while noticed the case ofBaikuntha Nath Das (supra), also noticed its decision in AllahabadBank Officers Association – Vs – Allahabad Bank reported in 1996 (4)SCC 504, wherein the Supreme Court held that "power of compulsorilyretiring a government servant is one of the facets of doctrine ofpleasure incorporated under Article 310 of the Constitution. Theobject of compulsory retirement is to weed out the dead wood in orderto maintain efficiency and initiative in service and also to dispensewith the service of those whose integrity is doubtful so as topreserve purity in the administration." (Emphasis added).At para-11 of the judgment in Umedbhai M.Patel (supra), theprinciples were summarised as follows :-"11. The law relating to compulsory retirement hasnot crystallised into definite principles, whichcould be broadly summarised thus :(i) Whenever the services of a public servantare no longer useful to the general https://hcservices.ecourts.gov.in/hcservices/ administration, the officer can be compulsorilyretired for the sake of public interest.(ii) Ordinarily, the order of compulsoryretirement is not to be treated as a punishmentcoming under Article 311 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 avoiddepartmental enquiry when such course is moredesirable.(vii) If the officer was given a promotiondespite adverse entries made in the confidentialrecord, that is a fact in favour of the officer.(viii) Compulsory retirement shall not beimposed as a punitive measure."9. FR 56 (c) of the U.P. Fundamental Rules, which provides forcompulsory retirement of a government servant and similar to FR 56(2) of the Tamil Nadu Fundamental Rules, fell for considerationbefore Supreme Court in State of U.P. & Ors. - Vs – Vijay Kumar Jainreported in 2002 (3) SCC 641. Referring earlier decisions inShyamlal –Vs- State of U.P. reported in AIR 1954 SC 369, it was heldthat an order of compulsory retirement is neither a punishment nor isany stigma attached to it.The case of compulsory retirement of U.P. Judicial Officers againfell for consideration before the Supreme Court in Nawal Singh – Vs –State of U.P. reported in 2003 (8) SCC 117. FR 56 of U.P.Fundamental Rules was noticed. In the said case, the Supreme Courtobserved as follows :-"2. At the outset, it is to be reiterated that thejudicial service is not a service in the sense of anemployment. Judges are discharging their functionswhile exercising the sovereign judicial power of theState. Their honesty and integrity is expected to bebeyond doubt. It should be reflected in theiroverall reputation. Further, the nature of judicialservice is such that it cannot afford to suffercontinuance in service of persons of doubtfulintegrity or who have lost their utility. If suchevaluation is done by the Committee of the High CourtJudges and is affirmed in the writ petition, exceptin very exceptional circumstances, this Court wouldnot interfere with the same, particularly because the https://hcservices.ecourts.gov.in/hcservices/ order of compulsory retirement is based on thesubjective satisfaction of the authority."In the case of S.D.Singh – Vs Jharkhand High Court reported in2005 (13) SCC 737, the Supreme Court, having noticed that thepetitioner had not urged any ground of mala fide and in the counteraffidavit it has been stated that the valuation committee had takeninto consideration the petitioner's ACR, many of which showed thatthe petitioner of the said case was an average officer, particularlyin respect of the years immediately preceding the petitioner'sreaching the age of 58 years and that a vigilance proceeding had beeninitiated against the petitioner on the basis of several allegationmade against him, including a report made by the inspecting Judge,who had made inspection, held that "it cannot be said that there wasno material on the basis of which the valuation committee andsubsequently the Full Court of the High Court forming the opinionthat the petitioner was not suitable for continuing in service beyondthe age of 58 years."10. So far as the case of the petitioner is concerned, she hasmade wrong statement in her affidavit that there was no adverseremarks other than the adverse remarks for the periods 1st Jan., 2007and 23rd July, 2001 and 21st Jan., 2002 to 9th Dec., 2002. From therecords, it will be evident that for the period 28th July, 1998 to 18thNov., 1998, and 19th Nov., 1998 to 31st Dec., 1998, adverse remarkswere recorded, including adverse remarks regarding her reputation,i.e., honesty and integrity, as quoted hereunder :-"For the period from 28.07.98 to 18.11.98 :3. Promptitude in disposal of cases :a) Current|"Poor"b) Old|5. Supervision and Control :b) On Office Staff|Poor6. Attitude towardsb) Subordinates|Poor"For the period from 19.11.98 to 31.12.98 :4. a) Industry| b) Aptitude for hard work/| heavy work| "Poor" c) Readiness to take up| responsibility|8. Outlook towards :a) Members of the Bar | "Poor"9. Reputation as to a) Honesty | "Poor"b) Integrity |10. Overall view|"Poor. Must improve" https://hcservices.ecourts.gov.in/hcservices/ Those adverse remarks were communicated to her against which sherepresented on 30th Nov., 1999 and requested to expunge those remarks.At that stage, taking into consideration the fact that it was thefirst time such remarks was made about her honesty and integrity, theportfolio Judge, vide note dated 5th June, 2000, observed that theDistrict Judge seems to have taken hostile attitude and, therebyrecommended to expunge the same by treating as 'satisfactory', whichwas accepted by the then Hon'ble Chief Justice of this Court.Even for the subsequent period when she was functioning asJudicial Magistrate, Tiruchirappalli, in a separate district, in thecharacter role for the period 1st Jan., 2001 to 23rd July, 2001, and21st Jan., 2002 to 9th Dec., 2002, adverse remarks were recorded, asquoted hereunder :-For the period from 01.01.01 to 23.07.01 :IQuality of Judgment/Ordera)Reasoning|"Poor"b)Conclusion |IIKnowledge of Law andProcedure|"Below Average"IIIConduct and Dignitya)Inside Court|"Poor"b)Outside Court|IVOutlook towardsa)Members of the Bar|"Poor"b)Public|VReputation as toa)Honesty|b)Integrity|"Poor"c)Impartiality10Overall view|"Poor performanceas JudicialOfficer"For the period from 21.01.02 to 09.12.02 :"Conduct not satisfactory, both judicial andotherwise"Those adverse remarks of subsequent periods were againcommunicated to the petitioner vide official memorandum dated 23rdOct., 2002 and 3rd Oct., 2003. The representations preferred by thepetitioner against those adverse remarks were rejected and, thereby,reached finality as she never challenged the same before this Court. https://hcservices.ecourts.gov.in/hcservices/ In the review application preferred by the petitioner against theorder of compulsory retirement, she has mentioned about the characterrole and extract of the 2001 character role has been given, but nodenial has been made with regard to the adverse remarks of thesubsequent year, which was recorded by the portfolio Judge of thisCourt, particularly with regard to her integrity.11. From the different adverse remarks recorded, it will beevident that her Quality of Judgment has been adjudged as 'Poor';Knowledge of Law and Procedure – 'Below Average/Poor'; "Conduct andDignity Inside and Outside Court" – 'Poor' and particularly "Honesty,Integrity and Impartiality" – 'Poor/Doubtful Integrity'. For theperiod 21st Jan., 2002 to 9th Dec., 2002, a Honourable Judge of thisCourt even observed that "Her conduct is not satisfactory, bothjudicial and otherwise."12. From the judgments as noticed and referred to above, it willbe evident that the judicial officers, whose conduct and integrity isdoubtful, they can be compulsorily retired from service for the sakeof public interest.13. In the present case, the petitioner has not alleged any malafide against any individual nor there is anything on the record tosuggest that the order was passed to avoid any departmental enquiryor that she was promoted to higher post/grade even after such adverseremarks. Apart from the fact of poor knowledge of law, poor standardof judgments and poor conduct in the court, as reflected in thecharacter role of different years, the integrity and conduct of thepetitioner being doubtful, on attaining 50 years of age if she hasbeen compulsorily retired from service under FR 56 (2), it requiresno interference.However, a further question may arise as to whether a judicialofficer on whom the Full Court, i.e., all Judges of the High Courtlose their faith and trust, should be reinstated on appreciation ofservice records. We are not deliberating on this issue, which may bedetermined in an appropriate case.14. There being no merit, the writ petition is dismissed. But inthe facts and circumstances, there shall be no order as to costs.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.GLN https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal Secretary to Govt. Government of Tamil Nadu Home (CourtsI.A) Department Fort St. George Chennai – 9.2. The Registrar General High Court of Madras Madras – 104.+ 1 CC To Mr.AL.Gandhimathi,Advocate SR NO.5247+ 1 CC To Mr.A.Jenasenan, Advocate SR NO.5383+ 1 CC to the Government Pleader SR NO 5108 W.P. NO. 28259 OF 2007avm[co]gp/7.2.