CIVIL WRIT PETITION NO.4203 OF 2004 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 27, 2009 Dewan Chand .....Petitioner VERSUS Punjab & Haryana High Court and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. R. S. Bains, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana. for respondent Nos.1 and 2. Mr. Shailendra Jain, Advocate, for respondent No.3. Mr. Kamal Sehgal, Advocate, for respondent No.4. **** RANJIT SINGH, J. Judicial Officer retired compulsorily has filed this writ petition to pray for a very limited relief. He pleads that his request for voluntary retirement w.e.f 29.8.2003, as made by him, be accepted instead of retiring him compulsorily w.e.f. 2.9.2003 and the order of compulsory retirement be withdrawn. As per counsel for the petitioner, this order would rather be beneficial to the State CIVIL WRIT PETITION NO.4203 OF 2004 :{ 2 }: inasmuch as the petitioner would then be required to deposit a sum of Rs.64,500/-, which will be an amount payable on account of shortfall in the notice period of three months issued by the petitioner and the State will also be able to get back a sum of Rs.71,975/- paid to the petitioner in lieu of notice while directing his compulsory retirement. The facts, leading to filing of the petition and the prayer as made, noticed in brief are that the petitioner at the relevant time was working as Additional District and Sessions Judge in the State of Haryana. He had initially joined the service as Subordinate Judicial Officer on 14.5.1981 and had completed 22 years of judicial service, when he made a request for voluntary retirement through his letter dated 25.7.2003. The petitioner had prayed for his retirement w.e.f 10.11.2003, thus giving notice for three months'. Later, the petitioner remitted an amount of Rs.64,500/- and prayed that he be voluntary retired w.e.f 29.8.2003. The petitioner had also undertaken to pay any additional amount, if due, on account of the shortfall of this notice period. The petitioner would plead that no disciplinary case was either pending or under contemplation, when he submitted his request for voluntary retirement. He would also plead that once he has submitted this request, then under law there may not be a need to accept the same and that he would be deemed to have been retired w.e.f 29.8.2003 i.e. the date when he remitted his salary in lieu of the period falling short of the three months' notice as required by the statute. Instead, an order dated 2.9.2003 was served on the petitioner alongwith a bank draft of Rs.71,975/- on 5.9.2003. Vide this CIVIL WRIT PETITION NO.4203 OF 2004 :{ 3 }: order, the petitioner was compulsorily retired from his judicial service. In this background, the petitioner has made a prayer for permitting him to voluntary retire from service w.e.f 29.8.2003 instead of giving effect to the order of compulsory retirement w.e.f 2.9.2003. As per the petitioner, this will be an advantageous to the State as he would not only then have to refund the amount of Rs.71,975/- paid to him by the Government but he would also be required to deposit a sum of Rs.64,500/-, as was sent by him while forwarding his request for voluntary retirement. Rule 3.26 of Punjab Civil Services Rules, Volume 1 (as applicable to Haryana), when read with note 8, requires three months salary and all allowances to be paid simultaneously with the retirement order. The petitioner, thus, would contend that salary for three months' would work out to be Rs.1,02,627/- whereas he was only paid Rs.71,975/-. So, the petitioner would plead violation of the statutory provisions contained in the Rules to make first ground of his challenge to the order of his compulsory retirement. The petitioner would further make a grievance that his request for voluntary retirement, by dispensing with the condition of three months' notice period, was never forwarded to the competent authority i.e. Governor of Haryana and the same was declined by a non-speaking order passed by respondent No.1 (High Court). Though his request was declined but the amount of Rs.64,500/- sent by him alongwith request letter was not refunded. The record would show that the order of compulsory retirement of the petitioner is statedly passed in public interest . The petitioner would term this to be contrary to the public interest as such CIVIL WRIT PETITION NO.4203 OF 2004 :{ 4 }: and also in violation of the Rules. He would refer to some of the instances where such request made by Judicial Officers was granted and in this regard would make reference to the cases of S/Sh.B.L.Gulati, S.D.Tyagi, P.L.Goyal and K.K.Chopra, all Members of Superior Judicial Service, who, while working as District/Additional District & Sessions Judge in Haryana, served with a charge sheet, had sought voluntary retirement and their request in this regard was accepted. Not only this, the enquiries in progress/under contemplation were dropped in those cases where these were in progress. As per the petitioner, these officers were allowed to proceed on voluntary retirement. The petitioner may term his case to be on better footing than those as there was no disciplinary proceeding pending against him, when he made a request for voluntary retirement. The petitioner would then make reference to the procedure of assessing the Judicial Officers serving in the State. He would also make reference to his service record to say that he was allowed to cross the efficiency bar and was released selection grade and had been granted various promotions and ultimately was promoted as Additional District and Sessions Judge on due dates. Even while serving as Additional District and Sessions Judge, the petitioner claims to have earned `good' and `very good' annual confidential reports. He would then point out that throughout his service, he was conveyed two reports, which could be termed as adverse. First was at the very initial stage of his service career and pertains to the year 1981-82, when overall assessment was shown as `C'. The second report concerning the remarks regarding doubtful CIVIL WRIT PETITION NO.4203 OF 2004 :{ 5 }: integrity was issued in the year 2000-01, which ultimately has led to the impugned order being passed against the petitioner. The petitioner has then made a mention to the background for which he was so assessed in the report for the year 2000-2001. He would disclose that in the year 1988-89, he was posted as Chief Judicial Magistrate, Hisar, when respondent No.3 was the District and Sessions Judge of the said Sessions Division. The work and conduct of the petitioner was graded as `very good' by respondent No.3 in the year 1988-89. In February 1999, respondent No.3 was elevated as a Judge of this Court. Respondent No.3 later became the Inspecting /Administrative Judge of the Hisar Sessions Division in the year 2000-2001, while petitioner was posted back as Additional District and Sessions Judge. The petitioner states that respondent No.3 was annoyed with him due to an incident, which he has mentioned in detail in the writ petition. As per the petitioner, Sh.Sandeep Garg, son of respondent No.3, was running a factory in the name of `Sandeep Ceramics', for which he had obtained a loan from Haryana Financial Corporation. To secure this loan, house of respondent No.3 situated at Faridabad had been mortgaged. It is stated that son of respondent No.3 could not pay the loan instalments and, thus, a sum of Rs.2.33 crores became payable and due from him. Respondent No.3 asked the petitioner, he being related to the then Chief Minister, to get this loan amount waived of and to get his house released from the incumbrance. The petitioner avers that he was also asked to get him an industrial plot at Gurgaon allotted in the name of wife of respondent No.3. The petitioner states that he could not succeed in this regard and this made respondent CIVIL WRIT PETITION NO.4203 OF 2004 :{ 6 }: No.3 to get annoyed with him and ultimately assessed the petitioner in the impugned report in the manner it is done. Other averments are also made to the effect that respondent No.3 had initiated this report late, though it was due on 31.5.2001. In this report, the petitioner was assessed to be `not industrious' or `prompt in disposal of cases'. It was also commented that his judgments are good but they are motivated. The judgments were assessed in the `C' category, which is below average. The petitioner was also termed as `efficient' but `dishonest'. He was also given remarks of `integrity doubtful' against the column of reputation for honesty and impartiality. In addition, it is mentioned that “there are reports that he has taken money in large number of applications under NDPS Act through a particular lawyer and has been taking money in other civil and criminal matters”. The net result of the report was `C' (integrity doubtful). When these remarks were conveyed to the petitioner, he filed an interim representation. By then, respondent No.3 had already retired. The representation filed by the petitioner was marked to another Judge of this Court. The request of the petitioner for personal hearing was statedly declined. However, on the basis of the representation made, adverse entry in Column No.3, relating to quality of judgment and the order passed by the petitioner was upgraded to `B' from `C' but other prayers were rejected. This was communicated to the petitioner by respondent No.1 through letter dated 15.3.2003. After inspecting the records, the petitioner sent a final representation on 24.4.2003, in which he had made some additional pleas. This again was rejected without granting any CIVIL WRIT PETITION NO.4203 OF 2004 :{ 7 }: opportunity of personal hearing. The petitioner would term this order to be a non-speaking one. In addition, the petitioner pleads that the representation was not decided by the competent authority. As per the petitioner, the report of an officer is also required to be approved by the Full Court as per the practice and accordingly representation against the annual confidential report was also required to be placed before the Full Court. The representation filed by the petitioner, however, was not placed before the Full Court but was decided by the assigned Judge. The petitioner has made very serious challenge to the recording of adverse remarks and the manner in which these have been endorsed. As per the petitioner, no complaint had been received against him either by the High Court or by respondent No.3. Before recording this adverse remarks, the petitioner was not apprised of any adverse material. He would, thus, say that such serious adverse remarks, doubting his integrity, have been recorded without any material or basis. In this regard, the petitioner would urge that neither the name of the Advocate nor the details of the NDPS Cases, which the petitioner decided by taking money, has been mentioned anywhere. Rather, no mention has been made to any of the case, which the petitioner had decided allegedly by taking money. The petitioner would then make reference to his two reports recorded subsequently in the years 2000-01 and 2002-03 where he was graded as `good' with B+ grade. On the basis of this report, where the petitioner was termed as `doubtful integrity', he was compulsory retired w.e.f. 2.9.2003. The petitioner would term this to be a punishment, which is inflicted without holding any enquiry or without CIVIL WRIT PETITION NO.4203 OF 2004 :{ 8 }: issuing any show cause notice. He would accordingly say that this order is arbitrary, discriminatory and violative of the Constitutional guarantees, besides being in violation of principles of natural justice. Here only, the petitioner would also refer that he was to complete 58 years of age on 12.8.2006 but was retired compulsorily on 5.9.2003, when he was 55 years of age. The petitioner would also urge that he had completed 22 years of qualifying service and, thus, has sought voluntary retirement w.e.f. 10.11.2003. He had, in this regard, remitted a sum of Rs.64,500/- through his letter dated 29.8.2003, seeking voluntary retirement w.e.f. 28.8.2003. In response, he was served with this impugned order. Initially, the petitioner had filed a writ petition under Article 32 directly before Hon'ble Supreme Court. He was thereafter given liberty to file a writ petition before this Court. He accordingly withdrew his writ petition filed before the Supreme Court and filed the present writ petition. Replies on behalf of respondents, including High Court, have been filed. The averment that no disciplinary proceeding or complaint was pending against the petitioner when he submitted his request for voluntary retirement, is disputed. Reference is made to a complaint made by one Ram Singh, which was statedly pending. The details in regard to this complaint were called for by the then Administrative Judge. The submission made by the petitioner that he, though retired w.e.f. 29.8.2003 i.e. the date on which he had deposited the salary in lieu of the remaining period of notice is stated to be not tenable. It is then pointed out that request of the petitioner for voluntary retirement was duly considered by the Hon'ble Judges CIVIL WRIT PETITION NO.4203 OF 2004 :{ 9 }: in the Full Court alongwith the matter of his retention in service beyond 55 years and it was decided to make recommendation to the Government for retiring him by giving pay and allowance by which the notice falls short of in public interest. Even judicial work was also withdrawn from the petitioner. Other contentions of the petitioner that his request was required to be forwarded to the Governor for acceptance is disputed. The cases of B.L.Gulati, S.D.Tyagi, P.L.Goyal and K.K.Chopra are stated to be distinguishable and not similar to the case of the petitioner. The remarks made by respondent No.3 in regard to the work and conduct of the petitioner are justified as these were endorsed after observing the work, conduct and reputation of the petitioner. The averment in regard to the background of endorsing these remarks is rightly not replied by the official respondents as it would relate to respondent No.3. However, while responding to the plea of the petitioner that his representation was not placed before the Full Court, it is stated that the same had been referred to the Full Court and was statedly pending consideration, when this reply was filed. Similarly, it is stated in the reply that the annual confidential report was also pending consideration of the Full Court and was to be recorded after his representation was decided by the Full Court. Respondent No.3 has filed a separate short reply wherein he has justified the report recorded by him. As per respondent No.3, the petitioner was retired compulsorily and in order to challenge the said compulsory retirement order, he has taken help of patently false and reckless allegations against him just to mislead the Court. Respondent No.3 would deny if he had ever accepted or asked the CIVIL WRIT PETITION NO.4203 OF 2004 :{ 10 }: petitioner to get the loan of M/s Sandeep Ceramics waived of from the Government and get released the mortgaged house, as has been averred. He has also denied the averments made in the petition that the petitioner was asked to arrange an industrial plot in the name of his family member. Respondent No.3 would further say that the fact that Co-Directors had borrowed a loan from Haryana Financial Corporation was the well known fact to everybody, including the petitioner and in this background would mention that the characters, like the petitioner, are always on a look out to find out some ground to gain a point on the basis of which they can get unwarranted gain. In short, he has tried to justify the adverse remarks and the assessment of the petitioner made in the annual confidential report. The fact that the industrial concern being run by son of respondent No.3 had defaulted in payment of loan, is not disputed in the reply filed by respondent No.3. It is seen from the record that on an oral request made by counsel for the petitioner, Haryana Financial Corporation was impleaded as respondent No.4. The Corporation subsequently came forward and submitted a report on direction issued by this Court. The report submitted by the Financial Corporation is on record. The fact that land measuring 20 kanals 9 marlas situated in Village Nuna Majra and a double storey house bearing No.63, Sector 9, Faridabad, owned by respondent No.3, being a collateral security, was given to the Financial Corporation to secure the loan, which had been obtained by M/s Sandeep Ceramics Limited, Bahadurgarh is confirmed. There are some other aspects of the report, which need not be referred to. Suffice it to notice that the fact of loan and the CIVIL WRIT PETITION NO.4203 OF 2004 :{ 11 }: house being mortgaged is as per the record. Though number of pleas are made to impugn the order of compulsory retirement, yet, in my view, there would not be any need to examine the allegations made against respondent No.3 for initiating this report or to see if these are substantiated or not. The prayer made in the petition would show that ultimately the petitioner has made a limited prayer for setting-aside the order of compulsory retirement to give effect to his prayer of voluntary retirement. He has also prayed for expunging adverse confidential reports, being arbitrary and based on no material. The counsel for the petitioner has drawn my attention to number of judgments to contend that when an adverse remark is endorsed in a confidential report without any basis or material, the same would be amenable to scrutiny by the writ Court. In this regard, he would first make reference to the case of Amrik Singh Vs. State of Haryana, 1995(4) RSJ 269. In this case, this court has viewed that while exercising jurisdiction under Article 226, the High Court does not act as a Court of appeal while making an adjudication on administrative matters and the Court interference in such like matters is on a limited grounds like violation of law, malafide or patent arbitrariness. It is further observed in this case that an onerous obligation is placed on the reporting or other authority, who makes adverse remarks regarding integrity of an officer to be extra cautious and careful while making adverse entry pertaining to integrity. Counsel then refers to the case of Avtar Singh Vs. The State of Haryana and others, 1995 (3) RSJ 262. In this case, the reporting officer had not clearly mentioned in the annual confidential CIVIL WRIT PETITION NO.4203 OF 2004 :{ 12 }: report that the petitioner is suspected of corruption or is believed to be corrupt. He has also not indicated the integrity of the petitioner is doubtful. What has been stated is that oral complaints regarding honesty were received. These remarks were found to be vague and indefinite. Strong reliance is placed on the case of M.S.Bindra Vs. Union of India and others, 1998 (3) SLR 358. Two principles seem to have been enunciated in this case. It is held that judicial scrutiny of any order imposing compulsory retirement is permissible if the order is either arbitrary or malafide or if it is based on no evidence. In this judgment, it is noticed that the principles of natural justice may have no place in the context of compulsory retirement but it does not mean that if the version of delinquent officer is necessary to reach the correct conclusion, the principles can be deviated on the assumption that other materials alone need to be looked into. In this case, the Hon'ble Supreme Court also held that while evaluating the material, the reviewing authority should not altogether ignore the reputation held by the officer. Any conclusion about the doubtful integrity should not be based on mere hunch. Order of compulsory retirement was ultimately set-aside by observing that there was utter dearth of evidence for the screening committee to conclude that appellant was having a doubtful integrity. I have examined the pleadings in detail and have heard the submissions made by learned counsel for the parties appearing before me. The petitioner would plead that the report is an aftermath of the incident referred to by him, which has been rebutted with much CIVIL WRIT PETITION NO.4203 OF 2004 :{ 13 }: vehemence by respondent No.3. Though the petitioner has so asserted in his petition that the remarks are due to the background given by him, yet the counsel would mainly plead that there is no material to support these damning remarks against him. There is, thus, no need to examine the veracity of this background as pleaded. The impugned report recorded on the petitioner pertains to the year 2000-01 and on the basis of the same, he has been compulsorily retired w.e.f 2.9.2003. The record would reveal that the petitioner had submitted a representation against the impugned report on 18.12.2001. On the basis of this representation, part of his assessment was upgraded to `B' from `C'. This was an interim representation filed by the petitioner. His prayer for personal hearing was declined. The petitioner was informed through a letter dated 15.3.2003 that column No.3 of the adverse report and entry made `C' below average has been upgraded to `B' i.e. `good'. Thereupon, the petitioner filed a detailed representation immediately after inspecting the record, which as per the petitioner, was rejected by a Judge of this court without referring it to Full Court. The rejection order is placed on record as Annexure P-6. It is not disputed before me that the representation against adverse confidential report was required to be placed before the Full Court. In fact, the petitioner had been allowed to inspect the record and thereafter had filed a final representation on 24.4.2003, where he has raised some additional pleas. This representation was again marked to a Judge of this Court, which was rejected. It appears that this was also rejected without reference to the Full Court. While responding to these averments made by the petitioner, it is disclosed in reply, as already CIVIL WRIT PETITION NO.4203 OF 2004 :{ 14 }: noticed, that the representation submitted by the petitioner was referred to the Full Court and was statedly pending when the reply was filed. This reply was filed on 28.4.2004. Mr.Bains has drawn my attention to Annexure P-17, which is an order dated 1.5.2004, through which the petitioner was informed that his representations dated 24.4.2003 and 15.9.2003 against the adverse remarks stood rejected and that he was graded `C' integrity doubtful in this confidential report. The question, thus, would arise if this entry could have been taken into consideration to compulsory retire the petitioner from service, once representation against the same was pending before the competent authority. The petitioner was compulsorily retired on 2.9.2003. Another added factor would be that not only the representation of the petitioner was pending consideration before the competent authority but final assessment in the annual confidential report regarding integrity doubtful was yet to be approved by Full Court. It could have been open to be used only once it was so endorsed by the competent authority i.e. Full Court. In the reply filed, it is clearly stated that his annual confidential report was to be recorded after his representations were decided by the Full Court. Thus, even the assessment of the petitioner as `C' integrity doubtful was yet to be finalised before it was used to compulsorily retire the petitioner from service. The subsequent approval of these remarks by the Full Court and rejection of the representation of the petitioner would be no solace in law to validate the order, which has been passed prior to this date, when it could legally have not been made. It is not disputed before me that compulsory