C.W.P No. 12391 of 2003 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P No. 12391 of 2003 Date of decision : July 01, 2009 Ishwar Chand Jain, ...... Petitioner (s) v. Punjab and Haryana High Court and another, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Petitioner in person. Dr. Balram Gupta, Sr. Advocate with Ms. Anamika Negi, Advocate & Mr.Raman Mahajan, Adv. for respondent No.1. Mr. Harish Rathee, Sr. DAG Haryana for respondent No.2. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J This writ petition is one of a series of petitions which have been filed by the petitioner against the respondents. The petitioner obtained Advocate licence on 6.11.1968 and on 2.5.1983 joined as Additional District and Sessions Judge at Hisar on his selection and appointment from the quota of the Bar. In the year 1984-85, he was posted at Narnaul where certain complaints were made against him. C.W.P No. 12391 of 2003 ::2:: On the basis of the resolution dated 21.2.1985 passed by the Full Court of this Court, his services were terminated. The writ petition filed by him was dismissed by this Court on 9.12.1986. In appeal, the Hon'ble Supreme Court directed the petitioner to be reinstated in service. He was posted as Additional District & Sessions Judge, Narnaul on 9.6.1988. Thereafter, A complaint dated 26.12.1991 was received by respondent No.1 on 6.1.1992. On 20.2.1992 a preliminary inquiry report into the said complaint was submitted to this Court. Another set of complaints submitted by Shri K.C.Sharma Advocate Jind was also subjected to inquiry, a preliminary inquiry report regarding which was submitted on 10.4.1992. On 24.4.1992, the Full Court of this Court took a decision that the petitioner should be charge sheeted and that judicial work be withdrawn from him. He was considered for designation as District and Sessions Judge on 27.7.1992 but was not approved as his judicial work had been withdrawn. Shortly thereafter, in furtherance of the resolution passed by the Full Court, a charge sheet was issued to the petitioner on 29.7.1992. On 28.9.1992 he was considered for selection grade but was not granted the same for the above reasons. The Full Court considered the reply filed by him to the charge sheet and a decision was taken to hold departmental inquiry and to place the petitioner under suspension in a meeting held on 29.9.1992. By order dated 3.10.1992, the petitioner was placed under suspension. During the pendency of departmental inquiry, the Full Court vide resolution dated 12.12.1995 on the issue of retention of the petitioner in service beyond the age of 55 years, decided to make recommendation to the Haryana Government to retire the petitioner forthwith by giving three months pay and allowances in lieu of notices. It was also decided to C.W.P No. 12391 of 2003 ::3:: continue the enquiry proceedings against him for the limited purpose of imposing the cut on his retiral benefits. However, by another resolution dated 17.1.1996, the Full Court decided that departmental proceedings be not proceeded with for the present and departmental inquiries against him be deemed to have been dropped. Consequently, by order dated 10.5.1996 the petitioner was compulsorily retired w.e.f 17.5.1996. The petitioner challenged his premature retirement by way of CWP No.2091 of 1996. By order dated 22.5.1998 this Court quashed the order of compulsory retirement and by order dated 26.4.1999 the Hon'ble Supreme Court affirmed the same. The Full Court of this Court in its meeting held on 28.5.1999 constituted a committee of three Judges to look into the matter regarding regarding implementation of the judgment of the Hon'ble Supreme Court. The Committee submitted its report on 1.6.1999 which was considered by the Full Court on 2.6.1999 and it was decided that the petitioner be allowed to join duty. It was further decided that the enquiry, which was dropped by resolution dated 11.1.1996 be revived and the petitioner be placed under suspension. Consequently, the petitioner was allowed to join and thereafter placed under suspension and the inquiry was revived. He challenged this action by way of filing CWP No.15669 of 1999 which was decided by a Division Bench of this Court by judgment dated 2.6.2000 by holding as follows :- “ xx xx xx xx The points which arise for determination by the Court are :- (a) Whether the enquiry which had been dropped vide resolution of the Full Court dated 11.2.1996 could be C.W.P No. 12391 of 2003 ::4:: revived on the basis of the resolution dated 2.6.1999 ? (b) Whether the second order of suspension is legally correct and justified ? (c) whether the charge-sheet dated 29.7.1992 is liable to be quashed on the ground set out in the petition ? (d) whether the petitioner is entitled to be designated as District & Sessions Judge and granted senior scale etc. xx xx xx xx We have given serious thought to the respective submissions. In our opinion, Shri Rajiv Atma Ram has rightly argued that in view of the liberty given by the High Court to the competent authority to revive the proceedings of enquiry and take appropriate decision in accordance with law and the judgment of the Supreme Court, the legality of the decision taken by the Full Court to revive the enquiry cannot be questioned by the petitioner. During the course of argument, Shri Jain did not controvert the statement made by Shri Rajiv Atma Ram that in the counter filed in the Supreme Court, he had raised this plea but their Lordship have not accepted the same by making an order that the proceedings of enquiry cannot be revived. Shri Jain also admitted that he did not challenge the operative part of the order passed by the Division Bench. Therefore, we do not find any illegality in the resolution passed by the Full Court for revival of the departmental enquiry. C.W.P No. 12391 of 2003 ::5:: Xx xx xx xx The two questions which remain to be considered are whether the charge-sheet dated 29.7.1992 should be quashed and whether the petitioner should be designated as District & Sessions Judge and granted senior scale etc. Shri Jain made strenuous efforts to persuade us to go into the merits of the allegations levelled against him and cited several decisions to show that the charge-sheet is legally unsustainable but we have not felt persuaded to entertain his plea. Rather we are inclined to agree with the learned counsel for respondent No.1 that at this belated stage, petitioner should not be allowed to raise these issues. Admittedly the enquiry initiated in 1992 had substantially progressed before Hon'ble V.K.Bali J ordered that the same may not be proceeded in view of the decision taken by Full Court to prematurely retire the petitioner. Till then the petitioner had not challenged the charge-sheet by filing a petition in the High Court. We have been informed that the present enquiring authority (Hon'ble Swatanter Kumar,J) has already fixed the date of enquiry. Therefore, we do not consider it proper to delve upon his issue in detail and deem it proper to leave it open to the petitioner to raise all the objections before the enquiring authority and raise the same in any other legal proceeding, if any such eventuality arises in future. (Emphasis supplied). C.W.P No. 12391 of 2003 ::6:: The question as to whether the petitioner is entitled to be designated as District & Sessions Judge and he should be paid selection grade etc. would necessarily depend upon the outcome of the enquiry which as given out by Shri Rajiv Atma Ram is likely to be finalised in next two months provided the petitioner cooperates. In the result the writ petition is partly allowed. Order Annexure P-1 is quashed. However, the petitioner's prayer for quashing of the charge-sheet and the decision taken by the High Court to revive the enquiry is rejected with liberty to him to raise his objections to the charge-sheet before enquiring authority. The issue of re-designation of the petitioner as District and Sessions Judge, release of selection grade and payment of other dues shall be decided by the High Court after the conclusion of the departmental enquiry.” Against the aforesaid judgment, the petitioner filed an SLP with respect to the approval of revival of inquiry in which notice was issued and the following order was passed :- “......if the charge-sheet was approved by the Full Court, the enquiry was to cntinue but the finalisation was stayed.” The petitioner had also filed a contempt petition in respect of the alleged non implementation of the order quashing his suspension. Amidst all these proceedings, the petitioner made a representation dated 5.1.2002 in which he stated as under :- C.W.P No. 12391 of 2003 ::7:: “........ I have retired and have recently under-gone open heart bye-pass surgery and do not want to involve myself in unnecessary personal litigation. As per the rules (as I understand) maximum punishment which can be imposed on a retired employee is the cut in the pension to the extent of 33% and that to depending upon the fact whether the pension is sufficient for the maintenance of the retired employee and his family. I have been sanctioned a provisional pension of Rs.4993/- p.m and one third of it comes to Rs.1331/-. In order to avoid further litigation/hardship and embarrassment and without going into the merits of the case I voluntarily offer a cut of Rs.1331/- p.m in my pension provided the enquiry is dropped/not proceeded further and all my due/dues becoming due is released/paid to me.” The petitioner also withdrew his contempt petition and thereafter the Full Court passed a resolution dated 26.7.2002 to the following effect :- “Representations dated 5.1.2002 and 17.1.2002 of Sh. I.C.Jain Member Superior Judicial Service Haryana who retired from service on 31.10.2000 considered along with the report of Registrar and the request of Sh. I.C.Jain is accepted.” In this view of the matter, the SLP filed by the petitioner was also dismissed as infructuous. Thereafter, the petitioner was released his pension with 1/3rd cut and his other retiral benefits. C.W.P No. 12391 of 2003 ::8:: By this writ petition, the petitioner has claimed the following reliefs :- “a) to produce the original complaint and affidavits and the entire records of the preliminary enquiry and of the Full Court meetings (including the note of the Registrar, Agenda item, resolution of the Full Court) relating to the preliminary enquiry etc., redesignation of petitioner as District & Sessions Judge, release of selection grade, acceptance of request of petitioner and of other Judicial Officers to drop the inquiry, the alleged rejection of later representation of the petitioner concerning the cut in the pension etc. etc. b) to direct the registry of respondent to place full/true facts relating to the re-designation and release of selection grade etc. before the Full Court; c) to direct the respondent No.1 to consider, decide and allow the representation of the petitioner for his posting ex-facto as District & Sessions Judge and the release of Selection/Supertime Scale from the date he became eligible/his juniors were designated/released the same and to fix the basic pay accordingly; d) to allow to the applicant-petitioner the benefit of addition in qualifying service under Rule 4.2A of CSR (or of Rule 30 of Central Civil Services (Pension) Rules 1972 and of 10 years practice at the Bar under Rule 16 of the Superior Judicial Service Rules 1963 for the retiral C.W.P No. 12391 of 2003 ::9:: benefits; e) to calculate and pay the pension to the petitioner on the basis of last pay/emoluments drawn (fixed as per prayer `C' above) by him on the date of retirement on 32 years qualifying service (as per prayer `d' above) or 50% of the minimum of pay of the post held by the petitioner at the time of retirement, whichever is higher; f) to pay interest on the amount of arrears of pension for the delayed period i.e from 1.2.2001” The first argument of the petitioner is that his representation (Annexure P-2) was in the nature of an offer by which he had agreed that he would accept a cut of Rs.1331/- only in his pension subject to exoneration in the inquiry, and the grant of the benefit of redesignation as Sessions Judge as well as selection grade from the date his juniors were granted this benefit. He has argued that this offer having been accepted by the Full Court, the deduction in his pension cannot be more than Rs.1331/- and his prayers also deserve to be allowed. In my opinion, this argument is too far fetched. A perusal of the extract from the representation reveals that the petitioner just wanted to bring an end to the whole unsavoury controversy and had rather pleaded that even if he was to be held guilty the maximum punishment which would be imposed upon him could only be 1/3rd cut of pension and that he was ready to voluntarily accept the same. In my opinion, far from being an assertion of innocence this can equally be construed to be an admission of guilt. Had the inquiry continued and had the petitioner been found guilty he would have been not only liable to suffer a cut in his pension it would also C.W.P No. 12391 of 2003 ::10:: have a deeming effect of dis-entitling him from selection grade and re- designation. Thus, the argument that by the acceptance of his representation it must be deemed to be held that the petitioner was exonerated and that, thus, he would be entitled to the selection grade or re-designation cannot be accepted. Apart from omnibus argument reported above, the petitioner has also argued that when his case was considered for re-designation, ACRs for the years 1983-84, 1984-85, 1988-89 and 1991-92 were not considered in the correct prospective as they were materially changed on judicial intervention. He has, thus, argued that in any case, respondent No.1 is bound to reconsider his claim on the basis of modified ACRs. I am afraid that even if this assertion is accepted to be correct yet it cannot be held that the inquiry which was going on would have no affect on the entitlement of the petitioner for these claims. It must be remembered that the allegations against the petitioner were serious, relating to his integrity and in my opinion, in the event of a finding of guilt, the petitioner would not be entitled for re-designation and selection grade even if he had excellent service record. The technical argument of deemed date/s being sought to be raised by the petitioner on the basis of a judgment of the Hon'ble Supreme Court in Union of India etc. etc v. K.V.Jankiraman etc. etc. AIR 1991 SC 2010 cannot come to the aid of a person aspiring to higher echelons of judicial service if his integrity as a Judge is in doubt, since in my opinion that is the core competency required for any judicial office let alone the exalted one of District and Sessions Judge. It cannot be lost sight of that in K.V.Jankiraman etc. etc.'s case (supra), the Hon'ble Supreme Court held as follows :- C.W.P No. 12391 of 2003 ::11:: “........... It cannot be said that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. The officer cannot be rewarded by promotion as a matter of course even if penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, C.W.P No. 12391 of 2003 ::12:: he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can taken into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion........” Apart from this, even in CWP No.15669 of 1999, these arguments were not only available, the petitioner even pressed them into service but the Division Bench was pleased to reject them (in the emphasized extract supra). The S.L.P against that judgment having been dismissed, (albeit not on merits) the said judgment is binding on this Court. In support of the relief of grant of enhanced pension, the petitioner has relied upon rule 18 of the All India Services (Death-cum- Retirement) Rules, 1958 and particularly the first proviso thereto. The said rule is reproduced herein below :- C.W.P No. 12391 of 2003 ::13:: “18. Amount of Gratuity and Pension.- (1)(a) In case a member of the service retires from service in accordance with the provisions of these rules before completing qualifying service of ten years, gratuity shall be admissible at the rate of half month's pay of each completed six monthly periods of qualifying service; (b)(i) In case a member of the Service retires from service in accordance with the provisions of these rules, after completing qualifying service of thirty three years or more, pension shall be admissible to him at the rate of fifty percent of the average emoluments reckonable for pension : Provided that the pension calculated under this rule shall not be more than rupees fifteen thousand per month subject to the condition that the full pension shall in no case be less than fifty percent of the minimum of the revised scale of pay introduced with effect from the first day of January 1996 for the post held by the member of the Service at the time of his retirement. (Emphasis supplied). (ii) In case a member of the Service retires from service in accordance with the provisions of these rules after completing 10 years qualifying service but less than 33 years of qualifying service, the pension admissible to him shall be such proportion of the maximum pension admissible under (clause (a) omitted by GSR 35(E) dated C.W.P No. 12391 of 2003 ::14:: 14.1.1999) of this sub-rule as the qualifying service rendered by him bears to the qualifying service of 33 years. (iii) In case a member of the Service retires from service between the Ist January, 1996 and the 31st December 1997, and exercises an option to retain the pre- revised scale of pay and draws pension and death-cum- retirement gratuity under the rules in force immediately before the Ist day of January, 1996, the pension and death-cum-retirement gratuity in such cases shall be regulated as follows :- (i) Pension shall be calculated at fifty percent of the average emoluments. To the amount so calculated dearness relief up to AICPI 1510 at the prescribed rates shall be added and the amount so arrived at shall be regarded as pension. (ii) Death-cum-retirement gratuity shall be admissible with reference to emoluments at (i) above under the orders/rules (including that in respect of ceiling) in force immediately before coming into effect of the revised rules with effect from Ist day of January, 1996. Explanation : In this sub-clause, emoluments means `Pay' as defined in first provision of Rule 2(1)(bb). (2) An India Civil Service member of the Indian Administrative Service shall be entitled to receive an annuity of Rs.13,333.33: Provided that if any such C.W.P No. 12391 of 2003 ::15:: member for the death-cum-retirement gratuity scheme, his annuity shall be reduced by the annuity equivalent of the amount of gratuity; Provided that the amount of invalid pension shall not be less than the amount of family pension admissible under sub-rule (2) of Rule 22-B.” The petitioner has argued that under the first proviso (supra), the minimum pension cannot be less than 50% of the minimum of the revised scale of pay for the post last held by him viz that of Additional District and Sessions Judge. Learned counsel for respondent No.1 has relied upon sub rule (2) of rule 18 (supra) to say that since the petitioner had not completed 33 years of service his pension was proportionately fixed. In my opinion, the proviso to rule 18(1)(b)(i) (supra) is intended to ensure that regardless of the years of service, if an employee has earned a right to receive pension the same cannot be less than 50% of the minimum of the revised scale of pay introduced w.e.f Ist January 1996 for the post held by him. A reference in this regard may be made to a decision of this Court dated 2.2.2009 rendered in CWP No.5520 of 2003, S.P Sood vs State of Haryana and others. The last relief which remains to be dealt with is that of grant of benefit of additional qualifying service on the ground of having practised at the Bar before joining service. This benefit cannot be granted to the petitioner since this provision was added in rule 16 of the Superior Judicial Service Rules 1963 only in 2003 before which date the petitioner had superannuated. C.W.P No. 12391 of 2003 ::16:: In the circumstances, this writ petition is disposed of with a direction to the respondents to compute the pension of the petitioner in terms of the proviso to rule 18(1)(b)(i) of the All India Services (Death- cum-Retirement) Rules, 1958 as interpreted above. This exercise be completed and revised pension sanctioned to the petitioner within a period of three months from the receipt of a certified copy of this order. The petitioner would also be entitled to interest @ 8% p.a on the arrears which may also be paid within the aforesaid period. In case the arrears are not released within the stipulated period, the petitioner will be entitled to further interest @ 8% p.a on the amount of interest also. ( AJAY TEWARI ) July 01, 2009. JUDGE `kk'