LPA No. 239 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No. 239 of 2007 (O&M) Date of Decision 08 .03.2011 R.L. Sankhla ---Appellant Versus The Hon'ble High Court of Punjab and Haryana at Chandigarh and another ---Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. J.K. Sibal, Sr. Advocate with Mr. Sapan Dhir, Advocate for the appellant. Mr. Karminder Singh Walia, Advocate for the respondent. 1. To be referred to the Reporters or not? yes 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The instant appeal filed by the appellant under Clause X of the Letters Patent is directed against the judgment dated 18.09.2007, passed by the learned Single Judge upholding the order of his compulsory retirement dated 08.08.2002, on the recommendation of respondent No.1-High Court. The subject matter of challenge has also been the order dated 12.10.2007 dismissing the review application filed by the appellant. 2. Brief facts of the case are necessary to be noticed first so as to put the controversy in its proper perspective. The appellant LPA No. 239 of 2007 (O&M) -2- was appointed to the Judicial Service on 11.05.1981. He was promoted as Additional Senior Sub Judge in December 1989 and then as Chief Judicial Magistrate in June, 1993. Eventually, he was promoted as Additional District and Sessions Judge and joined as such on 02.02.1998, at Faridabad. He has claimed that till 06.09.2000, no adverse entry was ever conveyed to him throughout his service career which remained without blemish. However, on 16.05.2000, the High Court in exercise of disciplinary power under Rule 4-A of the Haryana Civil Service (Punishment and Appeal) Rules, 1987, (for brevity 'the 1987 Rules) read with Article 235 of the Constitution placed him under suspension (P-1), in contemplation of disciplinary action for imposition of major penalty. However, for the year 1999-2000, the remarks of the Inspecting Judge were communicated to him stating that his integrity was doubtful. The remarks also indicated that his reputation was stinking, and the members of the Bar and Judicial Officers were generally of the view that the appellant was corrupt. The appellant has claimed that adverse remarks regarding his integrity were made without holding any regular departmental enquiry. Those remarks were subjective in nature and founded on hearsay. In support of his claim, the appellant has placed reliance on a resolution dated 22.05.2000 passed by the District Bar Association, Faridabad, which discloses that during his tenure as Sub Judge at Palwal and as Additional District and Sessions Judge at Faridabad, there was not a single instance of misuse of chair by him and the District Bar Association LPA No. 239 of 2007 (O&M) -3- had sent an appeal to respondent No.1-High Court to reinstate him in service pending departmental enquiry (P-2). The appellant has also placed reliance on press reports. The adverse remarks recorded by Hon'ble Inspecting Judge were communicated to the appellant on 02.09.2000 through the Registrar of the High Court (P-3). For expunging of the adverse remarks doubting his integrity, the appellant made a representation on 25.09.2000 (P-5), which was rejected by Hon'ble Inspecting Judge (P-6). Even the second representation made on 04.12.2000 (P-7) was again rejected by Hon'ble Inspecting Judge on 05.07.2001 (P-8). On 14.05.2001, the appellant represented to respondent No.1-High Court for revocation of his suspension, which was followed by two reminders dated 03.12.2001 and 02.04.2002 (P-9) (Colly.). Eventually, the appellant filed CWP No. 7009 of 2002 with a prayer for quashing of his order of suspension. His writ petition was disposed of on 06.05.2002 by a Division Bench of this Court and the respondents were directed to pass appropriate speaking order on the legal notice sent by the appellant (P-10). The order passed by the Division Bench on the aforesaid observation reads as under: “Learned counsel for the petitioner contends that the legal notice served by the petitioner dated 2.4.2002, copy whereof is annexed to the petition as Annexure P/6, has not been responded to by the respondents. In the facts and circumstances of the case, LPA No. 239 of 2007 (O&M) -4- we consider it appropriate to dispose of this petition with a direction to the respondents to pass an appropriate speaking order on the afore- referred legal notice within a period of four months from the date, a certified copy of this order is brought to their notice. Writ petition stands disposed of accordingly. 6.5.2002 Sd/- Swatanter Kumar Judge Sd/- Mehtab S. Gill Judge” 3. On 24.07.2002, the suspension order passed against the appellant was revoked and he was reinstated in service (P-11). Accordingly, he submitted his joining report on 30.07.2002 and also re-joined the duty as Additional District and Sessions Judge (P-12). The appellant claimed that reinstatement after revocation of his suspension, which lasted about 2 years led to a presumption and belief that there was nothing adverse against him which could justify any disciplinary proceeding at the instance of respondent No.1-High Court. However, on 3.07.2002, the District and Sessions Judge, Faridabad, intimated him that vide memo dated 25.07.2002, the High Court has recorded his ACR for the year 1999-2000, as integrity doubtful (P-13). The appellant has claimed that the report recorded in the year 2002, was not recorded in normal course at the end of the year 1999-2000 but after the close of the year 2001-2002. LPA No. 239 of 2007 (O&M) -5- Therefore, it constituted a colourable exercise of power to achieve a collateral purpose. 4. The appellant then filed CWP No. 12082 of 2002 with a prayer for quashing the adverse remarks recorded in his ACR for the period 1999-2000, but the same was dismissed as withdrawn with liberty to file a fresh writ petition on the same cause of action. The appellant has alleged that despite his reinstatement on 24.07.2002 and assumption of charge on 30.07.2002, he was not assigned any staff and work. He had addressed communication to the District and Sessions Judge, Faridabad, for the assignment of the work and staff (P-15). Eventually, he was compulsorily retired vide order dated 08.08.2002, communicated by respondent No.2-State of Haryana (P- 16). The order specifically mentions that the appellant was being retired from service in public interest under Clause (d) of Rule 3.26 of the Punjab Civil Services Vol-I, Part-I, as applicable to State of Haryana. The appellant filed a representation against order dated 08.08.2002, conveying adverse remarks doubting his integrity (P-17). 5. The allegation of the appellant is that the adverse remarks were recorded on 25.07.2002, a day after appellant was reinstated in service and proposal for retiring him was sent to the Government of Haryana on 29.07.2002, much before communicating adverse remarks to him on 31.07.2002. It is asserted that sequence of these events suggested that respondent No.1-High Court had made up its mind to compulsorily retire the appellant and for that purpose the adverse remarks were recorded on 25.07.2002. It is LPA No. 239 of 2007 (O&M) -6- claimed that the whole service record of the appellant in respect of the previous years would not justify any such order of compulsory retirement. 6. In the written statement filed by respondent No.1-High Court, the broad factual version disclosed by the appellant has been accepted but denying the allegations of exercise of colourable. It has been asserted that the adverse remarks recorded by Hon'ble Mr. Justice N.K. Sodhi on the work and conduct of the appellant in respect of the year 1999-2000 were not required to be based on any inquiry. In fact complaint dated 19.04.2002, made by Jitinder Kumar @ Bablu against the appellant levelled allegations of accepting illegal gratification of ` 10 lacs, when the appellant was working as Civil Judge (Sr. Division), in the cases titled as “Raj Karan v. Onkar Nath” and “Radha Ram v. Raj Karan Behal”. The District and Sessions Judge (Vigilance), Haryana, conducted a preliminary enquiry into the complaint and the allegations were found to be prima facie correct. A copy of the report dated 01.05.2000 (R-1) is on record. The report was then considered by the Hon'ble Judges in Full Court meeting held on 15.05.2000, when it was decided that the appellant be suspended forthwith and he be charge-sheeted for inflicting major penalty. Accordingly, he was suspended vide order 16.05.2000, and a draft charge sheet was prepared, which was duly vetted by the Committee of three Hon'ble Judges and the same was placed before the Full Court for approval. The issue of approval of draft charge sheet, which was proposed to be served on the LPA No. 239 of 2007 (O&M) -7- appellant and the matter concerning his retention beyond 50 years of age were simultaneously considered in a Full Court meeting held on 26.07.2002. The matter regarding approval of draft charge sheet was dropped in view of the fact that the decision was taken in the same meeting not to extend his period of service beyond the age of 50 years. 7. The representation made by the appellant on 23.05.2000 for reinstatement in service was rejected by the Full Court in its meeting held on 11.08.2000. The subsequent representations were also considered in Full Court meeting held on 22.07.2002 and he was reinstated in service vide order dated 24.07.2002. In reply to the allegations that 3 months' salary was not paid, the respondents have placed reliance on letter dated 13.08.2002, forwarding the acknowledgment in original by the District & Sessions Judge, Faridabad in token of having receipt the retirement order dated 08.08.2002 and report dated 10.08.2002 relinquishing the charge. She also intimated that a sum of ` 60621/- was drawn for payment of 3 months' pay and allowances in lieu of the period of notice on 12.08.2002 (10.08.2002 being holiday and 11.08.2002 was Sunday). Mr. Dalbir Singh, Nazir, was deputed to hand over the draft to the appellant who refused to accept the same, which was sent later on through registered post vide office letter dated 12.08.2002, and the same was received back with the report “since I am challenging the retirement order. Hence it is returned”. Respondent No.2-State of Haryana has issued notification dated 30.09.2002, retiring the LPA No. 239 of 2007 (O&M) -8- appellant from service w.e.f. 10.08.2002 in terms of order dated 08.08.2002. With regard to passing of speaking order in pursuance of the direction issued by a Division Bench of this Court on 06.05.2002, the representation made by the appellant was considered in Full Court meeting held on 22.07.2002 and consequently, he was reinstated in service. 8. Having lost before the learned Single Judge, the appellant has challenged the adverse remarks doubting his integrity for the year 1999-2000 (P-3), orders rejecting his representation (P-6 and P-8) and the adverse remarks communicated to him on 25.07.2002 (P-13), as also order of his compulsory retirement passed against him on 08.08.2002 (P-16). The learned Single Judge dismissed the petition by observing as under: “It is settled law that in matters requiring subjective satisfaction, a court exercising jurisdiction under Article 226 of the Constitution of India cannot go into sufficiency of material for arriving at subjective satisfaction. The Court has only to be satisfied that there was material on record and the decision of the concerned authority is based on material on record. A subjective satisfaction can also be challenged on the ground of mala fides on the part of the concerned authority. Fortunately, in the present case, there is no allegation of mala fides against anyone nor any LPA No. 239 of 2007 (O&M) -9- argument was raised suggesting mala fides on the part of any person or authority involved in the decision making process.” 9. The learned Single Judge extracted five propositions of law as laid down by Hon'ble the Supreme Court rendered in the case of Baikuntha Nath Das and another v. Chief District Medical Officer, Baripada and another, (1992) 2 SCC 299 and proceeded to observe as under: “ The principles laid down by the Apex Court reproduced above have been generally followed by the Courts. Thus, so far as the impugned order dated 8.8.2002 is concerned, it only says “Whereas on the recommendation of the Hon'ble Punjab and Haryana High Court, Chandigarh, it has been decided by the State Government to retire Shri Rattan Lal Sankhla, a member of the Haryana Superior Judicial Service from service in public interest.............” Such an order of compulsory retirement is not to be treated as punishment. It does not imply any stigma. The power to compulsorily retire an officer is meant for being used to improve efficiency in government service. The officers who are not able to efficiently discharge their official duties and become a liability to public service on account of doubtful integrity, inefficiency or incompetence need not be continued LPA No. 239 of 2007 (O&M) -10- in service. It has been often said that dead wood has to be chopped off. ............................,to my mind, keeping in view the facts and circumstances of the case, a Judicial Officer can be pre-maturely retired even on the basis of a single adverse entry regarding integrity against him and a decision retiring the petitioner from service compulsorily has been taken in public interest. In the instant case, I find that the rules permit compulsory retirement of an officer and a decision regarding retiring the petitioner compulsorily from service has been taken in accordance with the rules.” 10. Rejecting the contention that there was arbitrariness or mala fide in the decision to compulsorily retire the appellant from service, the learned Single Judge observed that the complaint filed against the appellant was rightly dropped and respondent No.1-High Court rightly made recommendation to the State Government to compulsorily retire him. The view of the learned Single Judge is patent from the following observation, which reads as under: “It is a bona fide exercise of power under the rules. The decision is neither arbitrary nor mala fide. In fact, such decisions are necessary to improve efficiency in service. To my mind, recording of Annual Confidential Report is, in essence, subjective and administrative and the making of an adverse LPA No. 239 of 2007 (O&M) -11- entry is not equivalent to imposition of penalty which would necessitate an enquiry and the giving of reasonable opportunity of being heard to the government servant concerned. It is further settled that recording of Annual Confidential Reports was a matter of subjective satisfaction of the officer concerned, the correctness thereof cannot be gone into by the court.” 11. Learned Single Judge further opined against the retention of a corrupt officer and went on to observe as under: “Since I am dealing with the case of a higher Judicial Officer, the nature of judicial services is such that continuance in service of an officer of a doubtful integrity would mean condoning corruption. Moreover, no employer can be saddled with responsibility to retain an employee, who is proved to be corrupt or indulging in dishonest practices, especially in an Institution, which is considered a `temple of justice' where transparency and honesty of an officer is at stake and is adjudged at every step. Showing sympathy in a case like this possibly be construed as condoning corruption or even possibly be recorded as indirectly encouraging dishonesty. That apart, it is impossible to prove by positive evidence the basis for doubting integrity of a judicial officer. Reliance is LPA No. 239 of 2007 (O&M) -12- required to be placed on the opinion of the person who had the opportunity to watch the performance of the officer and formation of the opinion with regard to over all reputation enjoyed by the petitioner concerned. Moreover, lower judiciary is the main hub of the judicial system and the weeding out of the dead wood from the judicial system in the administration of justice is must, so that general public may not lose faith in the justice delivery system and in the instant case, it cannot be said that the order of compulsory retirement of the petitioner is, in any way, erroneous or unjustified. It is a painful decision, which is to be taken in order to maintain the dignity of the judicial system and for improving the efficiency in service.” Rival contentions: Submissions of the appellant. 12. Mr. J.K. Sibal, learned Senior counsel has vehemently argued that recording of adverse remarks concerning doubtful integrity cannot constitute a basis for compulsory retirement of a Judicial Officer, especially when the appellant was placed under suspension and a departmental enquiry for imposition of major penalty under the 1987 Rules was pending. According to learned Senior counsel, the whole process initiated by respondent No.1-High Court lacks bona fide because it was aimed at defeating the direction issued by a Division Bench of this Court on 06.05.2002, directing LPA No. 239 of 2007 (O&M) -13- respondent No.1-High Court to pass a speaking order on the legal notice sent by the appellant because the suspension order was quickly revoked on 24.07.2002 and the appellant was reinstated in service. Consequently, the appellant joined his duty on 30.07.2002. The District Judge, Faridabad, intimated him adverse ACR for the year 1999-2000, doubting his integrity. Therefore, the whole process is afflicted with irrelevant consideration and is vitiated. Learned counsel has also maintained that respondent No.1-High Court cannot be permitted to circumvent the Rules of natural justice, inasmuch as the regular enquiry could not have been dropped when specific allegations have been levelled against the appellant. Learned Senior counsel has maintained that dropping of regular enquiry ex facie shows that the case of establishment was very weak against the appellant and therefore, it constitutes a colourable exercise of power to achieve a collateral purpose. 13. In support of his submission, learned Senior counsel has placed reliance on paras 15, 16, 20 and 32 of the judgment of Hon'ble the Supreme Court rendered in the cases of Ram Ekbal Sharma v. State of Bihar and another, (1990) 3 SCC 504 and Madan Mohan Choudhary v. State of Bihar and others, (1999) 3 SCC 396 and argued that Court is competent to lift the veil from the ex facie innocuous order and find out the real face of the order. Learned Senior counsel has maintained that single report of integrity doubtful cannot be considered as conclusive to hold the appellant guilty of any misconduct. LPA No. 239 of 2007 (O&M) -14- Submissions of respondent No.1 14. Mr. Karminder Singh Walia, learned counsel for the respondent No.1-High Court has however, argued that well settled principles of law concerning compulsory retirement is that the deadwood, inefficient and corrupt officer has to be shown the door and it does not imply any stigma as suggested by the counsel for the appellant. According to learned counsel, order of compulsory retirement is passed in a larger public interest and the Court is not to sit over such decision as a Court of appeal. In support of his submission learned counsel has placed reliance on the judgment of Hon'ble the Supreme Court rendered in the cases of Shiv Dayal Gupta v. State of Rajasthan & another (2005) 13 SCC 581 and Pyare Mohan Lal v. State of Jharkhand & others, (2010) 10 SCC 693. 15. Having heard learned counsel for the parties and after perusing original record of the ACR produced before us, we are of the considered view that the appellant has been retired in accordance with the parameters settled for such an action and in larger public interest. It would first be appropriate to set out the précis of the ACRs showing work and conduct of the appellant from the year 1981-1982 to 1999-2000. The following table would give a bird's eye view and the same is as under: “Precis of annual confidential remarks on the work and conduct of Shri Rattan Lal Sankhla, former member of Haryana Superior Judicial LPA No. 239 of 2007 (O&M) -15- Service. (Appointed as Sub Judge w.e.f. 11.5.1981) Years Remarks by the High Court 1981-82 B(Average/ Satisfactory) 1982-83 B(Average/ Satisfactory) 1983-84 B(Average/ Satisfactory) 1984-85 B Plus (Good) (Promoted as ADJ w.e.f. 2.2.1998) 1985-86 B Plus (Good) 1986-87 B Plus (Good) (The Officer was placed under suspension w.e.f. 16.5.2000) 1987-88 B Plus (Good) 1988-89 B Plus (Good) 1989-90 B Plus (Good) (The officer was reinstated vide office order dated 24.7.2002) 1990-91 B Plus (Good) 1991-92 B Plus (Good) 1992-93 B Plus (Good) 1993-94 B Plus (Good) (The officer was retired prematurely vide orders dated 8.8.2002 by the Govt. of Haryana) 1994-95 B Plus (Good) 1995-96 B Plus (Good) 1996-97 B Plus (Good) 1997-98 B Plus (Good) 1999-99 B Plus (Good) 1999-2000 C-Integrity doubtful Inspection remarks for the year 2000- 2001 & 2001-2002 were not recorded as the officer remained under suspension.” 16. A perusal of the aforesaid table would show that for the first 3 years, the officer earned 'B (average/ satisfactory)' reports and for the year 1999-2000, he has earned 'C-integrity doubtful'. LPA No. 239 of 2007 (O&M) -16- The record further reveals that the appellant was placed under suspension w.e.f. 16.05.2000 and was reinstated in service on 24.07.2002 (P-11). It is trite to observe that judicial service is not an employment in the sense that an employee is to discharge duty from 9:00 a.m. to 5:00 p.m. The Judges have to discharge their sovereign function without fear or favour, affection or ill-will upholding the Constitution and the laws. In para 2 of the judgment of Hon'ble the Supreme Court rendered in the case of Nawal Singh v. State of U.P. and another (2003) 8 SCC 117, their Lordships of Hon'ble the Supreme Court has expressed similar sentiments, which are extracted below: “2. At the outset, it is to be reiterated that 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 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, this Court would not interfere with the same, particularly because order of compulsory LPA No. 239 of 2007 (O&M) -17- retirement is based on the subjective satisfaction of the Authority.” (emphasis added) 17. Therefore, it is concluded that the judicial office demands much more than any other ordinary employment. In Chandra Singh and others v. State of Rajasthan & another (2003) 6 SCC 545, the similar views have been echoed, which are evident from reading of paras 47 and 48, which reads as under: “47. In the instant case, we are dealing with the higher judicial officers. We have already noticed the observations made by the Committee of three Judges. The nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. 48. In the instant case, the appellants, so retired, do not lose any part of their benefit that they have earned during their service and it involves no penal consequence and in our view the retirement is not considered prima facie and per se as punishment.” (emphasis added) 18. In that case, a Committee of three Hon'ble Judges had taken the decision to recommend compulsory retirement of a Judicial Officer. The Committee had examined the service record, character roll, quality of the work, disposal, integrity, general reputation and potentiality and opined that the officers were not fit to be given the LPA No. 239 of 2007 (O&M) -18- benefit of extension beyond the age of 58 years. Accordingly, it was held that under Article 235 of the Constitution, the High Court is fully entitled to assess the performance of any judicial officer at any time with a view to discipline the black sheep, or weed out