[CASE NUMBER] (O/M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. [CASE NUMBER] (O/M) Date of decision : 5.10.2018 [ENTITY] Petitioner Versus [ENTITY] and another Respondents
2. [CASE NUMBER] (O/M) Date of decision : 5.10.2018 [ENTITY] Petitioner Versus Hon'ble [ENTITY] Respondent CORAM : HON'BLE MR. JUSTICE [ENTITY] HON'BLE MR. JUSTICE [ENTITY] Present:- Petitioner [ENTITY] in person.
Ms. [ENTITY], Addl. A.G., Punjab.
Mr. [ENTITY], Senior Advocate with Mr. [ENTITY], Advocate for the Hon'ble High Court.
1. Whether the Reporters of local newspaper may be allowed to see the judgment ?
2. To be referred to the Reporter or not.
3. Whether the judgment should be reported in the digest ? [ENTITY] J.
This order shall dispose of two [CASE NUMBER] filed by petitioner-[ENTITY], the former Addl. Civil Judge (Sr. Divn.)-cum-Sub Divisional Judicial Magistrate, then working under the control of Hon'ble Punjab and Haryana High Court, Chandigarh, involving the same/similar issues.
By filing the aforesaid two civil writ petitions, the petitioner has invoked the writ jurisdiction under [SECTION] and [SECTION] of the 1 of 14 [ACT] for issuance of the writ in the nature of certiorari for quashing the order dated 19.05.2008 (Annexure P-7) passed by respondent- High Court, whereby the judicial work was withdrawn from him and the order dated 10.06.2008 (Annexure P-10) passed by the Principle Secretary to Government of Punjab, Department of Home Affairs / Justice, whereby the petitioner was prematurely retired from service. He has also sought quashing of ACR for the years 2006-2007 and 2007-2008, which were recorded as 'Average'. He has also sought writ mandamus for reinstating him in service along with consequential benefits.
In [CASE NUMBER], the petitioner has sought quashing communication dated 25.08.2007 (Annexure P-10); proceedings and report of the Committee of Hon'ble Three Judge on the representation of the petitioner as also the adverse remarks contained in the ACR Dossier dated 09/17.07.1999 (Annexure P-1); the memorandum dated 15.05.2000 (Annexure P-4) and dated 26.07.2005 (Annexure P-7) and also for directing the respondent to promote the petitioner as Addl. Civil Judge (Sr. Divn.) w.e.f. 17.02.1999 in terms of the decision of Hon'ble Full Court instead of the promotion granted on 16.03.2005 and to further promote the petitioner as Chief Judicial Magistrate/Civil Judge (Sr. Divn.) w.e.f. 30.03.2005, when his juniors were so designated with all the consequential benefits flowing therefrom such as seniority, arrears of pay along with interest @ 12% per annum.
According to the petitioner, he is M.A. LL.B. His date of birth is 05.05.1958. On 10.06.1992, he was appointed as a Member of Punjab Civil Services (Judicial Branch) and was posted as Civil Judge (Jr. Divn.)-
2 of 14 cum-Judicial Magistrate 2nd Class at Ludhiana. Thereafter, his annual grade for the years 1992-93 to 1994-95 'B-Satisfactory' and for the years 1995-96 to 1997-98 was 'B+ - Good'. In December, 1998, he was posted at Chandigarh as Judicial Magistrate and was dealing with the criminal case pertaining to Shri [ENTITY], the then Chief Engineer, PWD, Chandigarh and Shri [ENTITY], Superintending Engineer, PWD, Chandigarh. The petitioner had sought his transfer from Chandigarh to another place vide application dated 18.12.1998. On the basis of his service record, the petitioner was promoted as Addl. Civil Judge (Sr. Divn.) by the Full Court but the decision was kept in abeyance. The Hon'ble High Court vide letter dated 17.07.1999 conveyed adverse remarks recorded as 'C-Integrity doubtful' in the ACR of the petitioner for the year 1998-1999. On the basis of the said adverse remarks, a charge-sheet (Annexure P-4) was served upon the petitioner. Thereafter, regular departmental inquiry was conducted, in which he was exonerated. The petitioner was confirmed as Civil Judge (Jr. Divn.) on 22.05.2002. The petitioner made a representation for expunging the adverse remarks recorded in his ACR for the year 1998-99 but the same was rejected. After exonerating the petitioner in the departmental inquiry, vide order dated 16.03.2005, he was promoted as Addl. Civil Judge (Sr. Divn.)-cum-sub Divisional Magistrate and was posted at Mansa. The petitioner filed [CASE NUMBER] for quashing the communication dated 25.08.2007, whereby his representation was rejected.
According to the petitioner, his annual grading from the year 1999-2000 to 2005-2006 was 'B+ - Good' and except for the period 2003- 2004 when it was recorded satisfactory. His monthwise disposal from May 3 of 14 2006 to April 2008 was ranged from 'Good' to 'Very Good' except for the months May 2006, June 2006 and July 2007, when it was recorded 'Satisfactory'.
According to the petitioner during inspection by Hon'ble Mr. Justice [ENTITY], the Administrative Judge recorded the inspection report dated 26.02.2008, in which he appreciated the work of the petitioner at Patti. No complaint of any sort from the members of the Bar against the petitioner was received. On 16.05.2008, the Full Court recommended to the [ENTITY] that the petitioner may be retired from service on completion of 50 years of age. Vide order dated 19.05.2008, the judicial work of the petitioner was withdrawn and thereafter, the Hon'ble High Court conveyed the ACRs to the petitioner for the years 2006-07 and 2007-08, which were recorded as 'Average', which shows that before recommending the premature retirement, there was no material on the basis of which he could be prematurely retired. The [ENTITY] accepted the recommendation of the Hon'ble High Court and passed the order dated 10.06.2008, whereby the petitioner was prematurely retired from service under [SECTION] of the [ACT].
According to the petitioner, under [SECTION] of the [ACT], an employee could be retired in public interest on completion of 25 years of qualifying service or on attaining the age of 50 years. According to him, the order of his premature retirement is illegal and his ACRs for the years 2006-07 and 2007-08 are deserved to be upgraded from 'B' to 'B+' and he should be reinstated in 4 of 14 service.
The Registrar of the Hon'ble High Court in the written statement took the plea that the Court of the petitioner was inspected by Hon'ble Mr. Justice [ENTITY], in the year 1998-99 and the ACR of the petitioner was recorded as 'C- Integrity doubtful' with the following remarks:
2. Is he industrious and prompt in the disposal No of cases and has he coped effectually with heavy work?
5. Is he an efficient judicial officer ? No
6. Has he maintained judicial reputation No for honesty and impartiality ? (See. A separate Note Attached)
11. Net result 'C' (Integrity doubtful) Further, Hon'ble Mr. Justice [ENTITY], the then Administrative Judge of Ludhiana Sessions Division in the year 2003-2004 recorded the ACR of the petitioner as 'B-Satisfactory' with the following remarks:
5 Is he an efficient judicial officer? Yes. Should work with Judicial Restraints.
Has he maintained Judicial reputation for By and large yes. See Annexure 'A'. 6 honesty and impartiality Behaviour towards members of the Bar Advised to mellow down a little. 8 and public Following further remarks were also recorded:
"The officer appears to have a propensity to invite complaints regarding which observations were made by Hon'ble [ENTITY], J. (as his Lordship the was) when he inspected Chandigarh Sessions Division for the year 1998-99. He was able to avoid the lapses in the 5 of 14 subsequent two years whereafter Hon'ble [ENTITY], J. made the following remarks:-
" Some complaints have been noticed casting suspicion on his reputation. In the judgments, defects have also been pointed out to the officer concerned."
Reference is made to some complaints received at Ludhiana which were filed, therefore, need not be discussed. There is also reference to the complaints, which were pending. It was stated that the Hon'ble Administrative Judge had observed that it will be in his own interest that he is withdrawn from a sensitive station like Ludhiana and posted at a less sensitive station so that the pressure which can be put on him is less. The District and Sessions Judge of the district, where he is transferred, should be specifically asked to monitor his work in the light of these observations, so that he is helped to avoid the pit falls into which he has a tendency to land himself.
The representation dated 24.11.2004 to expunge such remarks was rejected by the Full Court on 21.09.2005 and the ACR for the year 2003-04 was recorded as 'B-Satisfactory' by the Full Court meeting held on 23.02.2005.
Further, Hon'ble Mr. Justice [ENTITY], Administrative Judge of Amritsar Sessions Division for the year 2006-07 recorded the following inspection remarks against column Nos.7 and 8:
7. Integrity Must improve
8. General assessment regarding his image strength and short comings The petitioner made the representation dated 17.10.2007 against the aforesaid inspection and the same was placed before Hon'ble Mr. 6 of 14 Justice [ENTITY] and His lordship was pleased to direct that the remarks are 'advisory'.
Further, Hon'ble Mr. Justice [ENTITY], the then Administratie Judge of Amritsar Sessions Division for the year 2007-2008, recorded the following remarks in the ACR of the petitioner:
3. Capacity of management, Poor leadership, initiative, planning and decision making
7. Integrity There were many complaints against him. He really needs to be watched and should try to improve his image.
8. General assessment His integrity is regarding strength and border line. Needs shortcomings to improve his image.
PART-III Remarks of the Administrative Judge Too many complaints against him, although not substantiated by any material. Needs constant surveillance.
Under the orders dated 25.04.2008 of Hon'ble Mr. Justice [ENTITY], the District and Sessions Judge, Amritsar was asked to keep the work and conduct of the petitioner under constant surveillance. The said remarks were approved by the Full Court. The representations 7 of 14 dated 12.07.2008 and 14.07.2008 to upgrade his ACRs for the years 2006- 2007 and 2007-2008 from 'B-Average' to 'B+ - Good' were rejected by the Full Court on 22.09.2008. The petitioner had concealed the ACR, which was recorded adverse against his work and conduct. It was stated that the due procedure was followed. The work and conduct of the petitioner in the ACR for the year 1998-99 was recorded as 'C-Integrity doubtful'. Further, his two ACRs for the years 2006-2007 and 2007-2008 were recorded as 'B- Satisfactory'. Therefore, the Full Court after following due procedure and after considering the entire service record, made the recommendation for premature retirement of the petitioner. It was further stated that the petitioner sought the sealed record sent to the then Hon'ble Administrative Judge of Chandigarh, which was taken note by Hon'ble Mr. Justice [ENTITY], forming part of the ACR. The petitioner was allowed to inspect the record but vide representation dated 21.05.2001, he stated that he did not want to inspect the documents. The petitioner was granted personal hearing on 12.07.2006 by Hon'ble Mr. Justice [ENTITY], the then Administrative Judge, Amritsar Sessions Division. Thereafter, it was observed that the adverse remarks against the petitioner were not based merely on the two instances mentioned in the said order but also based on his general reputation gathered from the public and lawyers, specific complaints as well as a bunch of documents received from Hon'ble Chief Justice received in a sealed cover. These documents had obviously seemed to indicate that the petitioner was an un-scrupulous manipulator and he had scant regard for ethical and moral values. Therefore, the remarks cannot be expunged, which pertain to his stay at Chandigarh. The matter was placed before a 8 of 14 Committee, which accepted the recommendation of Hon'ble Mr. Justice [ENTITY]. The Full Court in the meeting held on 25.07.2007 accepted the recommendation of Hon'ble Mr. Justice [ENTITY]. Therefore, the stand was taken that the order was rightly passed.
We have heard the petitioner in person, learned State counsel, learned counsel for the Hon'ble High Court and have also carefully gone through the case file.
There are three ACRs against the petitioner. First is for the year 1998-99 which was recorded as 'C-Integrity doubtful, while he was posted at Chandigarh and which was confirmed by the Full Court after giving opportunity of hearing to the petitioner and considering the material. Then, there are two ACRs for the years 2006-07 and 2007-08, which were recorded as 'B-Satisfactory'. Further, the remarks of Hon'ble Administrative Judge were also considered.
We have also examined the record mentioned in the ACR for the year 1998-99, which was produced in a sealed cover, which contained certain complaints against the petitioner, while he was posted at Chandigarh. The ACR for the year 1998-99 contained a note by Hon'ble Administrative Judge, giving the reasoning why he had recorded the ACR as 'C-Integrity doubtful'. The Hon'ble Administrative Judge had taken into consideration the general reputation of the petitioner from the public and lawyers, specific complaints mentioned the conduct of the petitioner dealing with said matters, which is clearly biased, motivated and based upon extraneous consideration. The bunch of documents which were received from the office of Hon'ble the Chief Justice in a sealed cover were also 9 of 14 considered. Against this ACR, the petitioner made representation. A Committee headed by Hon'ble Mr. Justice [ENTITY], gave personal hearing to the petitioner and considered the material and reported that there is no ground to expunge the remarks and upgrade the ACR. The said report was accepted by the Full Court.
We are also of the view that when a reasoning is given in support of the report or there is material, then this Court cannot sit over the judgment of Hon'ble Administrative Judge to take an opinion different than Hon'ble Administrative Judge. The rule of natural justice were followed while deciding the representation made by the petitioner. He was granted opportunity of personal hearing and also allowed to inspect the documents. Therefore, we find no ground to quash the ACR for the year 1998-99.
Now, coming to the ACRs for the year 2003-04, it is found that the Hon'ble Administrative Judge asked him to mellow down a little and gave him 'B-Satisfactory' report. A note dated 27.08.2004 was also appended with the ACR. The following observations of Hon'ble Mr. Justice [ENTITY], the then Administrative Judge are reproduced as under:
"The common feature in all these complaints appears to be a tendecny in the officer not to exercise judicial restraints. Not only this, he is rash and indiscrete in the use of discretion and, therefore, tends to ignore the normal process of law and renderes himself open to criticism by the litigant public. He does not stop at that and evidently tries to influence the lawyers into withdrawning complaints, which have been filed by them in regard to the above lapses, as has been done in complaint filed by Shri [ENTITY], Advocate, as mentioned above, it will be in his own interest that he is
10 of 14 withdrawn from a sensitive station like Ludhiana and posted at a less sensitive station so that the pressure which can be put on him is less. The District and Sessions Judge of the district, where he is transferred, should be specifically asked to monitor his work in the light of these observations so that he is helped to avoid the pit falls into which he has a tendency to land himself."
It shows that the work and conduct of the petitioner was not up to mark. While he was posted as Addl. Civil Judge (Sr. Divn.) at Patti, inspection of his Court was conducted by Hon'ble Mr. Justice [ENTITY], for the year 2006-07. Regarding integrity and general assessment, the remarks were recorded that he must improve his image. The quality of his work and quality of his judgment was found to be satisfactory. For the next year also i.e. 2007-08, inspection was carried out by a different Administrative Judge (Hon'ble Mr. Justice [ENTITY]) and reference was made to some complaints and it was observed that he needs to be watched. Consequently, his work and conduct was put under the surveillance of learned District and Sessions Judge, Amritsar. It was also recorded that his integrity is border line and he needs to improve his image.
All the reports and remarks reproduced above in the extract taken from the written statement of the Hon'ble High Curt show that while considering the entire service record of the petitioner, he was found not fit for further continuation in service and the department found it proper to prematurely retire him in the public interest.
We are of the view that with one report of the petitioner is 'C- Integrity doubtful' and his other two reports are 'B-Average' and his 11 of 14 integrity was border line and he was ordered to kept under constant surveillance by the learned District and Sessions Judge, the High Court was justified in coming to the conclusion that he should be prematurely retired from service on attaining the age of 50 years in the public interest.
The petitioner has argued that on account of the conducting the case of Shri [ENTITY], by the petitioner at Chandigarh, he was targated. We are of the view that though initially the promotion of the petitioner as Addl. Civil Judge (Sr. Divn.) was withheld but had the Hon'ble High Court been biased, he would not have been exonerated in the regular inquiry. It goes to show that the Hon'ble High Court acted in a fair and transparent manner. He was then promoted as Addl. Civil Judge (Sr. Divn.) and posted at Mansa. Then, he was posted at Patti, where two Administrative Judges, namely. Hon'ble Mr. Justice [ENTITY], and Hon'ble Mr. Justice [ENTITY] found his work to be satisfactory. He was considered dead wood and liability for the department. The public interest requires that an inefficient judge should not retained in service as while dealing with the civil and criminal disputes, he could cause immense damage to the public.
The petitioner has referred to the authority of "[PRECEDENT], claiming that he is entitled to the seniority from his juniors.
We are of the view that the said authority is not attracted in the present case as the matter of his seniority is not in question, rather his premature retirement is in question.
Petitioner has further argued that when the adverse reports are followed by good reports, the petitioner could not be compulsory retired 12 of 14 from service. He has referred to the authorities of Hon'ble the Supreme Court delivered in cases of "[PRECEDENT] and "[PRECEDENT].
He has also referred to the following authorities:
1. "[PRECEDENT].
2. "[PRECEDENT]
3. "Naurang Singh Mundra vs [ENTITY]", 2011(4) Law Herald (P/H) 3314.
4. "[PRECEDENT].
5. "[PRECEDENT].
6. "[PRECEDENT].
After considering the said authorities, we are of the view that the said authorities are not applicable to the facts of the present case as the facts of the said case are distinguishable.
We are of the view that once the departmental inquiry was contemplated against the petitioner and his ACR was graded as 'C-Integrity doubtful', for the year 1998-99, the department was justified in withholding his promotion and recalling the same. The petitioner had no right of promotion, unless he was exonerated in the departmental inquiry. After exonrating from the department inquiry, he was promoted as Addl. Civil Judge (Sr. Divn.). It was during his tenure as Addl. Civil Judge (Sr. Divn.), 13 of 14 that he got two consecutive 'B-Satisfactory' reports and consequently, he was prematurely retired from service. Therefore, there is no illegality or infirminty in the order passed by the respondent-department.
Therefore, we are of the view that there is no illegality or infirmity in the recommendations of the Hon'ble High Court in recommending the premature retirement of the petitioner and the Government of Punjab in accepting the same.
As a result of the foregoing discussion, both the aforesaid writ petitions are dismissed.
([ENTITY]) ([ENTITY]) JUDGE JUDGE 5.10.2018 sarita Whether speaking / reasoned Yes Whether Reportable: Yes 14 of 14