CWP No. 1744 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 1744 of 2004 Date of decision: 6.04.2011 Dr. Sant Ram Kapoor s/o Sh. Ram Saran Dass Kapoor ......PETITIONER VERSUS Punjab and Haryana High Court, Chandigarh and another ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE RANJAN GOGOI, CHIEF JUSTICE HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Dr. S.K.Kapoor, petitioner in person. Mr. K.S.Sidhu, Senior Advocate, with Mr. Rajdeep Singh Cheema, Advocate, for respondent No. 1. Mr. Kulvir Narwal, Addl. A.G. Haryana, for respondent No. 2. *** RANJAN GOGOI, C.J. The petitioner, who was a member of the Superior Judicial Service of State of Haryana, has challenged, through this writ petition, an order dated 01.11.2002 (Annexure P-1) by which he was put under suspension, a charge-sheet dated 26.03.2003 (Annexure P-3) as also the order dated 16.03.2004 (Annexure P-5) retiring him from service on his CWP No. 1744 of 2004 2 attaining the age of 58 years. A further prayer has been made for implementation of the order dated 19.09.2003 passed by a Division Bench of this Court in Civil Revision No. 3828 of 2002 (Annexure P-2) with a consequential prayer for reinstatement in service and grant of other service benefits. The facts which can be culled out from the pleadings and submissions made by the parties at the hearing can be summed up as follows: The petitioner joined the judicial service in 1977 and earned his due promotions on time. His record of service is reasonably good except for the initial period when he joined service. He has been assessed as 'Good' or above since the year 1981-82 in the Annual Confidential Reports. While the petitioner was posted as an Additional District and Sessions Judge in Panchkula, he decided a Rent Appeal on 15.06.2002 which was challenged in the High Court by filing a revision application i.e. Civil Revision No. 3828 of 2002. In the said revision petition, the learned Single Judge hearing the case, by order dated 31.07.2002, called for the explanation of the petitioner by observing therein that he had committed judicial indiscipline by entertaining the appeal against the order of Rent Controller and directing the ex-parte ejectment of the tenant/respondent by ignoring the law laid down by the Full Bench and Division Bench of this Court. In compliance to this order, the petitioner submitted an explanation dated 16.09.2002. On receipt of the said explanation, the learned Single Judge recorded a note dated 08.10.2002 stating that scandalous allegations had been made against the learned Single Judge by the petitioner in his aforesaid explanation dated CWP No. 1744 of 2004 3 16.9.2002. The matter was directed to be and was placed before the Acting Chief Justice who observed that the conduct of the officer was wholly unbecoming of a judicial officer and amounted to a grave misconduct. The note of the learned Single Judge and the accompanying papers were directed to be placed before the Full Court. The Full Court considered the same in its meeting on 30.10.2002 and decided that the officer be suspended forthwith and a charge-sheet be issued for major penalty. The petitioner was, accordingly, suspended by impugned order dated 01.11.2002 (Annexure P-1) and a charge-sheet was issued to him by memo dated 26.03.2003 (Annexure P-3). The reply submitted by the petitioner was placed before the Full Court on 18.07.2003 and the matter was referred to the Charge-sheet Committee where it is still pending. In Civil Revision No. 3828 of 2002, because of a compromise between the landlord and the tenant, the revision petition was dismissed as withdrawn by order dated 18.09.2002. The Rule issued by order dated 31.07.2002 to the petitioner with regard to his alleged judicial indiscipline and the explanation submitted on 16.09.2002 to the show cause notice, however, remained pending. The Chief Justice, by his order dated 15.09.2003, directed the listing of the explanation of the petitioner before a Special Division Bench of this Court. On the basis of an amended explanation submitted by the petitioner the show cause notice issued to the petitioner was dropped by order dated 19.09.2003 of the Special Division Bench. The matter regarding retention in service of the petitioner beyond the age of 58 years came up for consideration in a Full Court CWP No. 1744 of 2004 4 meeting held on 21.01.2004 wherein a decision was taken to the effect that, having regard to his service record, the petitioner be not retained in service. Accordingly a recommendation was made to the Haryana Government that the officer be retired forthwith on payment of three months' pay and allowances in lieu of notice. Accepting the recommendation of the High Court, the Government of Haryana, by order dated 16.03.2004 (Annexure P- 5), retired the petitioner from service. It is in these circumstances that the present writ petition has been filed seeking the reliefs earlier noticed. The petitioner contends that the order of suspension dated 01.11.2002 and the charge-sheet dated 26.03.2003 cannot be sustained in law in the light of the order passed by the Special Division Bench dated 19.09.2003 by which the show cause issued to the petitioner by order dated 31.07.2002 in Civil Revision No. 3828 of 2002, stood dropped. His further contention is that he has been retired without complying with the requirements of the statutory Rules governing the matter. It is urged that Rule 3.26 (d) of the Punjab Civil Service Rules Vol.1 Part-1, as applicable to the State of Haryana, in terms of which the entire service record has to be taken into consideration has been totally overlooked. Even in terms of the decision of the Full Court, consideration of the entire service record is mandated with particular reference to the record pertaining to the preceding five years. There is no adverse remarks against the petitioner in his entire service career. No shadow of doubt with regard to his integrity is reflected. In support of this assertion, reliance has been placed by the petitioner on his Annual Confidential Reports placed before the Court on behalf of the High Court. On the above basis it is contended that the order dated 16.03.2004 CWP No. 1744 of 2004 5 (Annexure P-5) retiring the petitioner from service deserves to be set aside. On the other hand, learned counsel for the High Court, has placed before us the circumstances in which the suspension of the petitioner was made. It is submitted that, as a matter of fact, a representation dated 12.09.2003 was submitted by the petitioner for revocation of the suspension which was considered by the Full Court in the meeting held on 10.11.2003. It was decided that the representation of the petitioner be rejected and he be charge-sheeted for major penalty, as earlier decided. As regards the charge- sheet dated 26.03.2003 (Annexure P-3), it is submitted that the same has been issued to the petitioner in the light of the intemperate language used by him in his explanation dated 16.09.2002 submitted in response to the show cause issued by order dated 31.07.2002 in Civil Revision No. 3828 of 2002. The reply of the petitioner to the charge-sheet dated 26.03.2003 could not be considered due to the pendency of the present writ petition. Learned counsel contends that the dropping of the show cause notice, on the basis of the amended explanation submitted by the petitioner before the Special Division Bench, does not exonerate him from the misconduct for which he was charge-sheeted by charge-sheet dated 26.03.2003. It is the further contention of the learned counsel that the entire service record of the petitioner was taken into consideration and the recommendation for compulsory retirement was made by the High Court in accordance with the statutory Rules as also the decision of the Full Court laying down the norms/criteria to be followed while considering cases of the judicial officers for retention in service on attaining the specified age(s). It is stated that the employer has an absolute right to retire an employee which has to be CWP No. 1744 of 2004 6 exercised on a subjective satisfaction. Accordingly, dismissal of the writ petition has been prayed for. We have heard counsel for the parties and have gone through the records of the case. We had called for the relevant part of the service record of the petitioner and have perused the same. The relevant facts, in some details, may now be noticed. In the order dated 15.6.2002 passed by the petitioner in the Rent Appeal out of which the present issues have arisen, the Full Bench judgment of this court in M/s Daya Chand Hardial Vs. Bir Chand 1983 Haryana Rent Reporter 228 and the Division Bench judgment in Babu Ram and another Vs. Gordhan Dass 1984 Haryana Rent Reporter 445 were taken note of by the petitioner. Thereafter in the order dated 15.6.2002 the petitioner took the view that as the order of the Rent Controller challenged in the Rent Appeal was obtained by practising fraud, occasioned by concealment of facts, the said order was a nullity and to declare the said order as such, the decision of the Full Bench will not come in the way. The second significant fact that will have to be noticed is that in the amended explanation filed by the petitioner before the Special Division Bench the petitioner had deleted/dropped the alleged scandalous remarks and had apologized for the same. In this regard the detailed order dated 19.9.2003 passed by one of the Hon'ble Judges constituting the special Division Bench will also have to be taken note of wherein it was categorically held that “ No judicial indiscipline has been committed by the Officer for which notice was required to be issued to him to explain his conduct.” There is no manner of doubt that the suspension of the petitioner made by an order CWP No. 1744 of 2004 7 dated 1.11.2001 was founded on the intemperate language used by the petitioner in his reply dated 16.9.2002 submitted in pursuance to the show cause notice issued to the petitioner in Civil Revision No. 3828 of 2002. The charge-sheet against the petitioner dated 26.3.2003 is on the same ground i.e. that in the explanation dated 16.9.2002 submitted in Civil Revision No.3828 of 2002, the petitioner has levelled false, baseless and imaginary allegations against the Hon'ble Judge who had issued notice to the petitioner in the said Civil Revision proceeding. The decision of the Full Court dated 21.1.2004 not to retain the petitioner in service beyond the age of 58 years and to recommend for his compulsory retirement is also based on the same facts. The aforesaid basis of the decision to suspend the petitioner and also not to retain him beyond 58 years is disclosed by the meeting notes of the Full Court which had taken the said decision(s). The power of control over the District Courts and the subordinate Courts vested in the High Court by Article 235 of the Constitution is a power that must be exercised to ensure a free, honest and impartial judicial system in each State or States over which the High Court exercises its territorial jurisdiction. The power to control the Subordinate judiciary, vested in the High Court, coupled with the complete separation of the judiciary from the executive makes it imperative for the executive, which has been conferred the power of appointment of District Judges and Subordinate Judges, to consult the High Court in all disciplinary matters. In fact keeping in view the independence and complete separation of the judiciary, the opinion of the High Court in all disciplinary measures would have primacy. The very nature of the power conferred in the High Court by CWP No. 1744 of 2004 8 Article 235 and the vast amplitude thereof makes it imperative that such power must be exercised fairly, responsibly and objectively. Coming to the power of the High Court in the matters of retention of Judicial Officers and for compulsory retirement of such officers at the age of 50, 55 and 58 what follows from the discussion made above is that in all such matters though the power is to be exercised by the appointing authority such exercise of power is primarily to be made on the basis of the recommendation of the High Court. The nature of the power of the High Court in matters of retention and compulsory retirement of Judicial Officers has been dealt with by the Apex Court in a long line of decisions reference to which could reasonably begin from the decision in Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada AIR 1992 SC 1020. In the very recent case of Pyare Mohan Lal Vs. State of Jharkhand and Others AIR 2010 SC 3753 the Apex Court has elaborately considered the entire gamut of the case law on the issue. From the aforesaid decision and the discussions recorded therein it is clear that the following principles govern the power of the High Court in making recommendations in the matter of retention of Judicial Officers beyond the stipulated ages and for compulsory retirement of such officers. (i)Only if the order is malafide or based on no evidence or the same is arbitrary from the perspective of whether a reasonable man would form the same opinion on the given materials, interference will be justified. (ii)The power of compulsory retirement in terms of the Service Rules is an absolute power. Whether an officer is to be compulsorily CWP No. 1744 of 2004 9 retired or not is a matter of subjective satisfaction though under Service Rules such satisfaction may be required to be reached on the basis of the record of service of an officer. (iii)Though the consideration of the record of service of an officer must be of the entire service record, the record of the later years or the year immediately preceding the decision of compulsory retirement would be of particular significance. However, there can be no hard and fast rule in this regard and a bad record of service in the previous year(s) does not get obliterated by good performance that may be recorded in a later year or years. It is by application of the above principles that the decision to compulsory retire the petitioner will have to be examined by us. But before the issue with regard to compulsory retirement is gone into, the other issues in the case, namely, the validity of the suspension order dated 1.11.2002 and the charge-sheet dated 26.3.2003 is required to be dealt with. It has already been noticed that the decision to suspend the petitioner and to charge-sheet him arose from the allegations of use of intemperate language in his explanation dated 16.9.2002. The said explanation was in response to the show cause notice issued in Civil Revision No. 3828 of 2002. The advisability of issuing a show cause notice to a judge for passing a 'wrong' judicial order has been considered by the Apex Court in several judgments of which reference may be made to the decisions in Braj Kishore Thakur Vs. Union of India and others AIR 1997 SC 1157, K.P.Tiwari Vs. State of M.P. AIR 1994 SC 1031 and Kashi Nath Roy Vs. State of Bihar AIR 1996 SCW 2098. The following CWP No. 1744 of 2004 10 observation in Kashi Nath(supra) adquately sums up the position:- “It cannot be forgotten that in our system like elsewhere appellate and regional Courts have been set up on the presumption that lower Courts would in some measures of cases go wrong in decision- making, both on facts as also on law, and they have been knit-up to correct those orders. The human element, in jurisdiction being an important element, computer-like functioning cannot be expected of the Court, however, hard they may try and keep themselves precedent-trodden in the scope of discretions and in the manner of judging. Whenever any such intolerable error is detected by a pointed out to a Superior Court it is functionally required to correct that error any may, here and there, in an appropriate case and in a manner befitting, maintaining the dignity of the Court and independence of judiciary, convey its message in its judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, mellow but clear, and result-orienting, but a rarely as a rebuke. Sharp reaction of the kind exhibited in the afore- extraction is not in keeping with institutional functioning. The premise that a judge committed a mistake or an error beyond the limits of tolerance is no ground to inflict condemnation on the judge Subordinate, unless there existed something else and for exceptional grounds.” The above has been noticed by us out of our anxiety to understand the true and correct principles that would govern the exercise of the judicial power by the High Court qua the judge as distinguished from the judgment. While the power must be acknowledged to exist in the CWP No. 1744 of 2004 11 absence of any constitutional denial its exercise must be tempered by utmost restraint, caution and sagacity and such exercise must always be preceded by a fine delicate balancing. While the aforesaid attributes do not abundantly appear in the order dated 31.7.2002 issuing the show cause notice to the petitioner as already held by the Special Division Bench in its order dated 19.9.2003, specific regard must be paid to the said order wherein a finding has been recorded that by entertaining the Rent Appeal the petitioner did not commit any judicial indiscipline. Above all, in the amended explanation filed by the petitioner before the Special Division Bench he had deleted the alleged scandalous remarks and had apologized for the same. In the light of these facts we do not see how the continuation of suspension order dated 1.11.2002 and the charge-sheet dated 26.3.2003 can be held to be legally tenable so as to warrant any further action on the basis thereof. Rather, the pendency of the charge-sheet on account of the present writ petition has resulted in a situation where all retirement benefits of the petitioner have been withheld and except for provisional pension (equivalent to normal pension) nothing has been forthcoming. Therefore, we are of the view that in the light of what has been discussed above and the long efflux of time that had occurred the suspension order dated 1.11.2002 and the charge-sheet dated 26.3.2003 should be interferred with by us which we hereby do. Consequently the petitioner must be deemed to have been on duty from the date of his suspension untill the date of his compulsory retirement. This would bring the court to a consideration of the validity of the order of compulsory retirement. As the said order is founded on the CWP No. 1744 of 2004 12 recommendation of the Full Court dated 21.1.2004 it is the validity of the said recommendation that has to be examined by us. We are conscious of the heavy responsibly that we have to discharge as the petitioner requires us to judge the correctness of a decision taken by all the Hon'ble Judges of this court, though on the administrative side. It is certainly an onerous responsibility which nevertheless has to be performed in the true traditions of the judicial system. The Annual Confidential Reports of the petitioner for the entire period of service rendered by him has been placed before us. We have perused the same and deem it appropriate to extract the grading earned by the petitioner in each year of service rendered by him. Year Remarks by the High Court 1977-78 B(Average/Satisfactory) 1978-79 B(Average/Satisfactory) 1979-80 B(Average/Satisfactory) 1980-81 B(Average/Satisfactory) 1981-82 B Plus (Good) 1982-83 B Plus (Good) 1983-84 B Plus (Good) 1984-85 B Plus (Good) 1985-86 B Plus (Good) 1986-87 B Plus (Good) 1987-88 B Plus (Good) 1988-89 No Scope (Remained on leave from 25.5.88 to 2.7.1992). For complaints Pl. see Annex. F.) CWP No. 1744 of 2004 13 1989-90 No Scope 1990-91 No Scope 1991-92 No Scope 1992-93 B Plus (Good) (Promoted as A.D.J. w.e.f. 23.4.1993) 1993-94 B Plus (Good) 1994-95 B Plus (Good) 1995-96 B Plus (Good) 1996-97 B Plus (Good) 1997-98 B Plus (Good) 1998-99 A- Very Good 1999-2000 B Plus (Good) Not much discussion is required to take the view that on the strength of the gradings in the Annual Confidential Reports of the petitioner for the entire period of service rendered by him it cannot be said that the officer is inefficient, unrealiable or has any adverse trait or characteristic. Nothing can be said against his integrity. In such a situation it has to be concluded that the sole reason that prevailed with the Full Court to decide against the retention of the officer and to recommend for his compulsory retirement is the same episode that had led to his suspension and the charge-sheet dated 26.3.2003. In fact the meeting note prepared for the Full Court indicates the above. Undoubtedly the said events are a part of the service record of the officer at the relevant time and, therefore, was a relevant fact for the consideration of the Full Court. The Full Court was, therefore, right in relying on the said facts in coming to its conclusion. But CWP No. 1744 of 2004 14 whether the same should have led to the decision actually taken or some other decision would have been more appropriate required a fine and delicate consideration of the Full Court. The observations of the Special Division Bench dated 19.9.2003; the fact that the alleged offending remarks were withdrawn and apology tendered together with the fact that the matter in issue was pending for inquiry, are vital issues in the decision making process undertaken by the Full Court. The above circumstances, in our considered view, should have tilted the decision of the Full Court in favor of the officer particularly having regard to his record of service. This is precisely where we find ourselves in disagreement with the Full Court. The possibility of an erroneous decision prompted by overlooking of vital and relevant facts, in our considered view, cannot be ruled out. We are, therefore, unable to persuade ourselves to uphold the recommendation of the Full Court dated 21.1.2004 which is foundation of the order of compulsory retirement of the petitioner dated 16.3.2004. We, therefore, consider it appropriate to allow the writ petition, set aside the order of suspension dated 1.11.2002, charge-sheet dated 26.3.2003 and the order of compulsory retirement dated 16.3.2004. As the petitioner in the meantime has crossed the age of 60 years we are of the view that a further declaration should be made to the effect that the petitioner shall be deemed to have been a member of the Haryana Superior Judicial Service upto the date on which he had attained 60 years of age. All retiral and pensionary benefits shall now be calculated on the aforesaid basis and paid to him. However, in sofar as, wages for the period during which the petitioner remained out of employment is concerned, though the CWP No. 1744 of 2004 15 petitioner had remained without work for no fault of his own, we are of the view that ends of justice would be met if the petitioner is held to be entitled to 50 per cent of the wages for the aforesaid period. The said amount will now be paid to the petitioner without any delay, after due computation. Consequently, the writ petition is allowed as indicated above. (RANJAN GOGOI) CHIEF JUSTICE (AUGUSTINE GEORGE MASIH) JUDGE April 6, 2011 RSK NOTE: Whether to be referred to the Reporter or not? _____