1 wp 5856.10.doc K IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5856 OF 2010 Shri Pradip Vasant Bavkar, Age 55 years, Occ. Nil, Residing at 201, Koyna Building, Sector No.15, Plot No.16, Sanpada, District Thane, Navi Mumbai – 400 705. ..Petitioner. Versus 1 The State of Maharashtra, Through The Principal Secretary and Legal Remembrance Law & Judiciary Department, Mantralaya, Mumbai – 400 032. 2 The Registrar General, High Court, Bombay, Appellate Side, Mumbai – 400 032. ..Respondents. Mr. Pradip Vasant Bavkar - Petitioner - party in person. Mr. C.R. Sonavane, AGP for Respondent no.1/State. Mr. S.K. Shinde for Respondent no.2. CORAM : J.P. DEVADHAR & K.K.TATED, JJ. RESERVED ON : 19/10/2011 PRONOUNCED ON : 16/11/2011. 2 wp 5856.10.doc JUDGMENT: (PER K.K. TATED, J.) 1 Heard the Petitioner – party in person and the learned counsel for Respondent no.1 and the learned counsel for Respondent no.2. 2 Rule. 3 By consent, Rule made returnable forthwith. 4 By this Petition under Articles 226 of the Constitution of India, the Petitioner challenges the order dated 26th February, 2010 passed by the Principal Secretary and Legal Advisor, Law and Justice Department, Mantralaya, Mumbai – 400 032 for compulsory retirement of the Petitioner from judicial service of the State of Maharashtra. 5 Relevant facts of the matter are as under: In the year 1976, the Petitioner completed his Bachelor of Arts degree and thereafter in the year 1981 LL.B degree. After completing 3 wp 5856.10.doc the Law degree, the Petitioner enrolled as an Advocate with the Bar Counsel of Maharashtra and Goa. After completion of 15 years practice as an advocate he joined judicial service on 19th November, 1997 as Judge, City Civil and Sessions Court, Greater Bombay (District Judge cadre). Thereafter, he was appointed as Special Judge for TADA Designated Court, Greater Bombay on 26th September, 2005. From 20th November, 2007 to 4th March, 2009 the Petitioner on transfer was posted as Solicitor-cum-Joint Secretary to the Government of Maharashtra, Mantralaya, Mumbai. On 5th March, 2009 the Petitioner came to be transferred and posted as Principal District and Sessions Judge, Amaravati. Thereafter, the Petitioner was transferred as Principal District and Sessions Judge, Sangli. During his tenure as a City Civil Court Judge, the Guardian Judge has written his Confidential Reports (hereinafter referred to as “CR”). The CR’s for the year ending March, 2005 and March, 2006 (Exhibit R and S) wherein certain adverse remarks were made against the Petitioner. 6 On the basis of the said adverse remarks and considering his service record, Review Committee of the High Court of Judicature at Bombay took decision on 27th January, 2010 as per Rule 19 of the 4 wp 5856.10.doc Maharashtra Judicial Services Rules, 2008 read with Rule 10 (4) of the Maharashtra Civil Services (Pension) Rules, 1982 to recommend to the Government for compulsory retirement of the Petitioner on his attaining the age of 55 years. Both the Adverse CR’s for the year 2004-2005 and 2005-2006 are reproduced herewith: “Exhibit - “R” Confidential Report on the work of Shri P.V. Bavkar, Judge, City Civil Court, for the reporting period year ending March, 2005. 1 Description of posts held and : Judge, City Civil Court, particulars of posting during Bombay. the period under report. 2 Special powers, if any conferred. : --- 3 Knowledge of law and procedure. : Poor. 4 What is the quality of his : Poor. judgments as regards reasoning, clarity and precision. 5 wp 5856.10.doc 5 Is he industrious and prompt in Disposal of cases? : ) a) Disposal of old cases : ) b) Disposal of other cases : ) c) Disposal of cases through ) Yes. Lok Adalat. : ) d) Work done for promoting ) Alternative Dispute ) Resolution. : ) 6 Remarks about supervision of the distribution of business and his control over the subordinate courts. : Fair. 7 Remarks about his admini- strative work. : Fair. 8 Remarks about his attitude towards his superiors, subordinates and colleagues. : Fair. 9 Remarks regarding his behavior towards members ) Dubious behavior of the Bar & the public. : ) Integrity is seriously ) in doubt. 10 Remarks about reputation ) Does not deserve and integrity, impartiality ) to be retained in and character. : ) service. 11 Whether he is under probation/ under extended period of probation. : N.A. 6 wp 5856.10.doc 12 Whether he under went training of JOTI during period of review and if so, remarks of Director. : N.A. 13 If he fit for taking additional responsibility. : 14 Whether he was placed under suspension/facing any Departmental enquiry during period review? : No. 15 Whether the Officer was warned/visited with penalty during period under review? : No. 16 General Remarks, if any : Corrupt judicial officer. 17 Net result : A+ Outstanding, A Very Good, B+ Positive Good, B Good. C – Average, C Below Average. C Below average. Place: Mumbai. Reporting Authority, Date: 8/12/08. sd/- Hon’ble Dr. Justice D.Y. Chandrachud 7 wp 5856.10.doc Exhibit - “S” Confidential Report on the work of Shri P.V. Bavkar, Judge, City Civil Court, for the reporting period year ending March, 2006. 1 Description of posts held and : Judge, City Civil Court, particulars of posting during Bombay. the period under report. 2 Special powers, if any conferred. : --- 3 Knowledge of law and procedure. : Poor. 4 What is the quality of his : Poor. judgments as regards reasoning, clarity and precision. 5 Is he industrious and prompt in Disposal of cases? : ) a) Disposal of old cases : ) b) Disposal of other cases : ) c) Disposal of cases through ) Yes. Lok Adalat. : ) d) Work done for promoting ) Alternative Dispute ) Resolution. : ) 6 Remarks about supervision of the distribution of business and his control over the subordinate courts. : Fair. 8 wp 5856.10.doc 7 Remarks about his admini- strative work. : Fair. 8 Remarks about his attitude towards his superiors, subordinates and colleagues. : Fair. 9 Remarks regarding his behaviour towards members ) Lacking in integrity. of the Bar & the public. : ) Dubious behavior. ) His continuance in 10 Remarks about reputation ) this judiciary is and integrity, impartiality ) undesirable. and character. : ) 11 Whether he is under probation/ under extended period of probation. : N.A. 12 Whether he under went training of JOTI during period of review and if so, remarks of Director. : N.A. 13 If he fit for taking additional responsibility. : 14 Whether he was placed under suspension/facing any Departmental enquiry during period review? : No. 9 wp 5856.10.doc 15 Whether the Officer was warned/visited with penalty during period under review? : No. 16 General Remarks, if any : Serious allegation of corruption. 17 Net result : A+ Outstanding, A Very Good, B+ Positive Good, B Good. C – Average, C Below Average. C Below average. Place: Mumbai. Reporting Authority, Date: 8/12/08. sd/- Hon’ble Dr. Justice D.Y. Chandrachud 7 Pursuant to the recommendation of the Review Committee of the High Court of Judicature at Bombay, the Maharashtra State through the Law and Justice Department passed an order dated 26th February, 2010 bearing No.CJM-2010/184/(23)K-3 of compulsory retirement of Petitioner from the judicial service (Ex.A). Immediately, thereafter, the Petitioner made representation to the Hon’ble Chief Justice, High Court of Judicature at Bombay for review or reconsideration of the decision taken by the Review Committee of the Hon’ble High Court of Judicature at Bombay, on the basis of which 10 wp 5856.10.doc the Petitioner was to be compulsorily retired. Thereafter, the Petitioner addressed a letter dated 12th March, 2010 to the Registrar General, High Court, Appellate Side, Bombay to stay the execution and service of the order for his compulsory retirement on completion of 55 years of age. In the said letter, in second para, the Petitioner stated that on 10th March, 2010 at about 3 p.m. he met the Hon’ble Chief Justice. He further stated that the Hon’ble Chief Justice was kind enough and assured him that he would be given personal hearing and before giving the hearing, order for compulsory retirement would not be served upon him; but without giving him hearing, his representation dated 8th March, 2010 was rejected by the High Court on 6th April, 2010 and the order passed by the State Government through Law and Judicial Department dated 26th February, 2010 was served on the Petitioner on 23rd April, 2010. Being aggrieved by the said order, the Petitioner filed the present Writ Petition under Article 226 of the Constitution of India. 8 The Petitioner who appeared party in person submits that the Reporting Judge has written (Adverse) Annual Confidential Report (hereinafter referred to as “ACR”) for the period ending 31st March, 11 wp 5856.10.doc 2005 and 31st March, 2006 on 8th December, 2008, wherein, it is stated that the Petitioner is corrupt Judicial Officer, his judgment and legal knowledge is poor and it is expressed that the Petitioner should not be continued in service. He submits that the said ACR is written either with prejudiced mind or on the basis of wrong information provided against the Petitioner with a view to damage the Petitioner’s judicial career and or His Lordship has committed gross error while writing the said two ACRs on account of mistaken identity. He submits that the said two ACRs are written by the Reporting Judge on 8th December, 2008 i.e. after above 3 to 4 years from the relevant period which again creates a serious doubt about their truthfulness and correctness. He submits that the said two ACRs are contradictory to the ACR for the period ending 31st March, 2007 written by the same Reporting Judge, wherein, His Lordship has observed that the Petitioner has good knowledge of law and procedure and there is nothing adverse to suspect integrity and character of the Petitioner and that the net result is “B Good”. The said CR is at Exhibit “T” to the Petition. 9 He further submits that throughout his career as Judicial Officer, he has given his best to the job. He has worked with utmost sincerity, 12 wp 5856.10.doc loyalty and integrity. He submits that his loyalty and integrity was never doubted. He submits that by taking into consideration his good service record, the Petitioner was appointed as Special Judge TADA, Designated Court, Mumbai, he was posted as Solicitor cum Joint Secretary to the Government of Maharashtra, Law and Justice Department, Mantralaya, Mumbai, he was transferred and posted as Principal District and Sessions Judge, Amaravati as well as Sangli. Considering these facts, the decision taken by the Review Committee, High Court of Judicature at Bombay dated 27th January, 2010 and the order passed by the Government of Maharashtra through the Law and Judiciary Department dated 26th February, 2010 Ex. A is against justice, equity and good conscience and same is liable to be set aside. 10 He further submits that he received two letters from the Registrar General, High Court, Bombay dated 19th January, 2010 which were issued to communicate the Petitioner the result of review of Annual Confidential Report for the period 2004-2005 (ending 31st March, 2005) and 2005-2006 (ending 31st March, 2006), wherein it is communicated to the Petitioner that: 13 wp 5856.10.doc a) Knowledge of law and procedure; Poor. b) Quality of his judgments as regards reasoning, clarity and precision: Poor c) Net result: Below Average. 11 He submits that the said letter also suggested that he should take note of the said observation and show improvement. The said communication goes to show that the Reviewing Authority accepted the comments of the Reporting Judge with regard to column nos. 3, 4 and 7 of the ACR in question and that the Reviewing Authority have not accepted the adverse remark of the Reporting Authority with regard to the integrity, behavior and reputation of the Petitioner. Therefore, in those letters, there is no reference of the remarks passed in column nos. 9, 10 and 16 when the Review Authority is not agreeable to those adverse remarks which support the contention of the Petitioner that the said adverse remarks are baseless, incorrect and unjust. 12 He further submits that he made a representation to the Chief Justice, Bombay High Court and requested for personal hearing. 14 wp 5856.10.doc Though the same was assured by the Chief Justice, without giving any personal hearing the impugned order came to be issued on 26th February, 2010 and served on him on 23rd April, 2010. Therefore, without hearing the Petitioner in person, the said impugned order issued by the Law and Judiciary Department is against justice, equity and good conscience and same is liable to be set aside. 13 The Petitioner further submits that due to mistaken identity the Reporting judge must have recorded those adverse remarks in the two ACRs because in the subsequent year the same Judge had written about his integrity as good. Therefore, on this count the impugned order dated 26th February, 2010 is also liable to be set aside. 14 During the course of hearing, the Petitioner in writing submitted grounds for challenging the ACRs for the period 2004-2005 and 2005-2006 which are as follows: “1 That the said ACR’s were written after a lapse of about 3-4 years for the period ending in one stroke on 8/12/2008 and that the Reporting Authority had not perused the service record.” 15 wp 5856.10.doc “2 That the Reporting Authority, without taking any efforts to ascertain the correct and true things seems to have relied upon absolutely wrong, incorrect and false information which seems to have been provided to spoil my judicial career. The Reporting Authority on the basis of such information seems to have formed absolutely incorrect and wrong opinion and thereby has committed gross error in taking adverse entries.” “3 That the available record, earlier ACR’s and facts and circumstances shows that the disputed ACR’s are required to be kept aside it being absolutely wrong and incorrect.” “4 That the language used and the adverse entries recorded in the said ACR’s are sufficient to infer that it is an outcome of grudge towards me and therefore the same are not free from doubt especially when the other record is good.” “5 That the adverse entries are not approved and confirmed by reviewing authority and therefore, the adverse entries lost its significance.” “6 That the guidelines fixed for writing ACR’s were totally ignored and kept aside by the Reporting Authority which suggest and point out that the Authority has acted in gross negligent and careless manner and have recorded incorrect and absolutely baseless and wrong entries.” 16 wp 5856.10.doc “7 Perhaps it may be a case of mistaken identity as there is no reference in the said disputed ACR’s that I was the then Joint Secretary and Solicitor to the Government of Maharashtra L & J D Mantralaya, though the said ACR’s were written on 8/12/2008 and on the relevant date I was not a City Civil Judge.” “8 That the ACR for the period ending March 2007 written by the same Reporting Authority is totally contrary to the disputed ACR’s and the net result is recorded as good in all respect which again goes to show that the adverse entries recorded in disputed ACR’s are either based on false and wrong information provided or that the Authority has committed error and took adverse entries without there being any substance.” “9 The record available in the office of Respondent no.2 goes to show that the adverse entries recorded in disputed ACR’s are absolutely wrong and incorrect.” 15 In support of his contention, the Petitioner relied on following authorities: 1) Baikuntha Nath Das vs. Chief District Medical Officer, Baripada reported in 1992 SC 168. 2) M.S. Bindra vs. Union of India and Others, reported in (1998) SCC 310. 3) Yoginath Bagade vs. State of Maharashtra reported in 1999 (7) SCC 739. 17 wp 5856.10.doc 4) Brij Mohan Singh Chopra vs. State of Punjab reported in 1987 (2) SCC 188. 16 The Petitioner, thus, urges that since there was no material on the basis on which the impugned ACRs could be recorded or order of compulsory retirement could be passed, the impugned order cannot be upheld. 17 In the matter of Baikunta Nath Das vs. Chief Officer, Baripada reported in 1992 SC 168, the Supreme Court made the following observations: “30. Another factor to be borne in mind is this: most often, the authority which made the adverse remarks and the authority competent to retire him compulsorily are not the same. There is no reason to presume that the authority competent to retire him will not act bonafide or will not consider the entire record dispassionately. As the decided cases show, very often, a Review Committee consisting of more than one responsible official is constituted to examine the cases and make their recommendation to the Government. The Review Committee, or the government, would not naturally be swayed by one or two remarks, favorable or adverse. They would form an opinion on a totality of 18 wp 5856.10.doc consideration of the entire record - including representations, if any, made by the government servant against the above remarks - of course attaching more importance to later period of his service. Another circumstance to be borne in mind is the unlikelihood of succession of officers making unfounded remarks against a government servant.” “31. We may not be understood as saying either that adverse remarks need not be communicated or that the representations, if any, submitted by the government servant (against such remarks) need not be considered or disposed of. The adverse remarks ought to be communicated in the normal course, as required by the Rules/orders in that behalf. Any representations made against them would and should also be dealt with in the normal course, with reasonable promptitude. All that we are saying is that the action under F.R. 56 (j) (or the Rule corresponding to it) need not await the disposal or final disposal of such representation or representations, as the case may be. In some cases, it may happen that some adverse remarks of the recent years are not communicated or if communicated, the representation received in that behalf are pending consideration. On this account alone, the action under F.R. 56 (j) need not be held back. There is no reason to presume that the Review Committee or the Government, if it chooses to take into consideration such uncommunicated remarks, would not be conscious or cognizant of the fact that they are not communicated to the government servant and that he was not given an opportunity to explain or rebut the same. Similarly, if any representation made by the government servant is there, it shall also be taken into 19 wp 5856.10.doc consideration. We may reiterate that not only the Review Committee is generally composed of high and responsible officers, the power is vested in Government alone and not in a minor official. It is unlikely that adverse remarks over a number of years remain uncommunicated and yet they are made the primary basis of action. Such an unlikely situation if indeed present, may be indicative of malice in law. We may mention in this connection that the remedy provided by Article 226 of the Constitution is no less an important safeguard. Even with its well-known constraints, the remedy is an effective check against mala fide, perverse or arbitrary action. At this stage, we think it appropriate to append a note of clarification. What is normally required to be communicated is adverse remarks - not every remark, comment or observation made in the confidential rolls. There may be any number of remarks, observations and comments, which do not constitute adverse remarks, but are yet relevant for the purpose of F.R. 56 (j) or a Rule corresponding to it. The object and purposes for which this power is to be exercised are well-stated in J.N. Sinha (AIR 1971 SC 40) and other decisions referred supra.” “32. The following principles emerge from the above discussion: (i) An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehavior. 20 wp 5856.10.doc (ii) The order has to be passed by the Government on forming the opinion that it is in the public interest to retire a government servant compulsorily. The order is passed on the subjective satisfaction of the Government. (iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate court, they may interfere if they are satisfied that the order is passed (a) mala fide or (b) that it is based on no evidence or (c) that it is arbitrary - in the sense that no reasonable person would form the requisite opinion on the given material; in short, if it is found to be a perverse order. (iv) The government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter - of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential records/character rolls, both favorable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority. (v) An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference. 21 wp 5856.10.doc Interference is permissible only on the grounds mentioned in (iii) above. This aspect has been discussed in paras 29 to 31 above.” 18 In the matter of M.S. Bindra vs. Union of India and Others, reported in 1998 SCC 310, the Supreme Court held that the want of materials could not justify the conclusion. The Court observed that the Judicial Officer cannot be condemned of “doubtful integrity” on the mere hunch, the doubt should be of such a nature which reasonably and consciously entertainable by reasonable person on the given materials and consciously entertain able by reasonable person on the given material and only then there is justification to stamp an Officer with the label “doubtful integrity” and that no one becomes dishonest all of a sudden. This decision is distinguishable on facts. In that case officer of Indian Revenue Service was compulsorily retired as his integrity was doubted on the basis of three specific cases decided by him and other material. He was unsuccessful before CAT. Hence he appealed to the Supreme Court. The Apex Court considered those cases and found that the three cases which formed the basis for 22 wp 5856.10.doc proceeding against the appellant do not reveal anything for which appellant’s integrity should have been doubted and allowed the appeal. The Apex Court in Rajendra Singh Verma ( dead ) through L.Rs. ( supra ) have considered the connotation of “material” appearing in that decision. At para 119 of the report their Lordships as regards the material on the basis of which the adverse remarks may be recorded state thus, “ while considering the case of a judicial officer it is not necessary to limit the material only to written complaints or “tangible” evidence pointing finger at the integrity of judicial officer. Such evidence may not be forthcoming in such cases.” Their Lordships at para 123 of the report laid down, “When even verbal repeated complaints are received against a judicial officer or on enquiries, discreet or otherwise, the general impression created in the minds of those making enquiries or the Full Court is that concerned judicial officer does not carry good reputation, such discreet