IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 08.06.2010 Coram THE HONOURABLE Mr. ELIPE DHARMA RAO, ACTING CHIEF JUSTICE AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.No.371 of 2006 R.Balasubramanian .. Petitioner V. 1.The Government of Tamil Nadu Rep. By the Chief Secretary to Government, Public (Special A) Department, Secretariat Fort St. George, Chennai – 600 009. 2.The High Court of Judicature at Madras, Rep. By the Registrar General, Chennai – 600 104. .. Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for an issuance of a Writ of Certiorarified Mandamus calling for the records relating to the impugned orders of the first respondent made in his proceedings in G.O.Ms.No.893 public (Special A) dated 24.6.2004 and as confirmed by rejecting the Review Petition in Letter NO.2730/2004-5 Public (Special A) Department, Secretariat dated 18.8.2005 and quash the same as illegal and unsustainable, and consequently direct the Respondents to reinstate the Petitioner as District Judge in the Tamil Nadu State Judicial Service, back into his services with all attendant benefits together with back wages and other emoluments attached to the post. For Petitioner : Mr.R.Thiyagarajan, Senior Counsel For Mr.S.Kanniah For RR 1 : Mrs.Malarvizhi Udayakumar, Special Government Pleader For RR 2 : Mr.A.Jenasenan O R D E R M.VENUGOPAL,J. The petitioner has filed this writ petition praying for an issuance of a Writ of Certiorarified Mandamus in calling for the records relating to the impugned orders of the first respondent made https://hcservices.ecourts.gov.in/hcservices/ in his proceedings in G.O.Ms.No.893, Public (Special A) Department, dated 24.6.2004 and as confirmed by rejecting the Review Petition in Letter NO.2730/2004-5 Public (Special A) Department, Secretariat dated 18.8.2005 and to quash the same as illegal and an unsustainable one and also consequently to direct the Respondents to reinstate the Petitioner as District Judge in the Tamil Nadu State Judicial Service with all attendant benefits together with back wages and other emoluments. 2. The petitioner was selected as a District Munsif through Tamil Nadu Public Service Commission by an order dated 09.6.1988 and posted as Additional District Munsif at the Additional District Munsif Court, Ariyalur during 1988. Subsequently, by direct recruitment, the petitioner was selected as Subordinate Judge in the Tamil Nadu State Judicial Service in pursuance of G.O.Ms.No.121 dated 20.1.1989 and he was posted as Subordinate Judge at Krishnagiri and he joined duty on 10.2.1989 Forenoon. His services were regularised by G.O.Ms.No.961 dated 30.6.1993 with effect from 10.2.1989. By means of an official memorandum dated 30.5.1997, he was promoted to the cadre of District Judge, Grade II and appointed as II Additional District Judge, Tiruchirappalli. Later, he was transferred and posted as Chief Judicial Magistrate, Dindigul and joined duty on 09.03.1998. By a Notification dated 02.12.1999, he was transferred and posted as Principal District Judge, Dindigul and took charge on 06.12.1999 Afternoon. 3.The petitioner was deputed to the Pondicherry Judicial Service for being posted as Additional District Judge, Karaikal as per G.O.No.737, Public (Special A) Department dated 1.6.2000. He was repatriated to the Tamil Nadu State Judicial Service as per Notification No.50/2003 and posted as Principal District Judge, Pudukottai and took charge on 23.4.2003. According to the petitioner, he was discharging his judicial function with utmost sincerity and hard work which was recognised by the High Court from time to time which enabled him to get promotion as Principal District Judge at the relevant period. The High Court, by its official memoranda dated 25.10.2002, 20.1.2003, 7.2.2003 and 26.4.2003, was pleased to record with appreciation the judicial work of the petitioner as an Additional District and Sessions Judge, Pondicherry at Karaikal. Also, the petitioner while serving as a Principal District Judge, Pudukottai had not fallen short of any of the norms prescribed by the High Court. 4.According to the petitioner, while he was working as District Judge, Pudukottai, he received a charge memo dated 24.9.2003 alleging certain irregularities, said to have been committed by him, while he was serving at Dindigul and called upon him to offer his explanation. He submitted his detailed explanation dated 23.11.2003, denying all the charges levelled against him and requested for dropping the alleged proceedings. He had stated in the form of questionnaire along with the enclosure that charges were vague and bereft of necessary details and certain charges are repugnant to the statement of allegations and also prayed for an oral enquiry and to be heard in person etc. The second respondent, by an order dated 15.12.2003, informed the petitioner that a joint enquiry would be held against him and two other staff members. He participated in the joint enquiry https://hcservices.ecourts.gov.in/hcservices/ conducted along with other delinquents and submitted that he was not responsible for the various misconducts alleged to have been committed by him. He also submitted his written arguments as early as on 1.4.2004, but he was not aware of the final orders passed if any, in the enquiry proceedings. 5.To the petitioner's shock and surprise, the first respondent, by an order in G.O.Ms.No.893, Public (Special A) Department, dated 24.6.2004, has compulsorily retired the petitioner from service, invoking Rule 56(2) of the Fundamental Rules. The said order was communicated by the Registrar General of this Court through a Notification No.80/2004 dated 24.6.2004 mentioning that the petitioner was relieved from the service with effect from 24.6.2004 Afternoon. However, he was given the liberty to file a Review Petition to the Government against the order of compulsory retirement within one month from the date of receipt of the same. 6.The petitioner filed a Review Petition on 17.7.2004 through proper channel by marking an advance copy furnished to the first respondent. 7. In the Review Petition dated 17.7.2004, the petitioner has, among other things, contended that though in the order of compulsory retirement it is mentioned that 3 months pay and allowances should be paid by cheque in lieu of notice, no cheque was in fact enclosed when the orders of compulsory retirement was issued. He, however, received the amount belatedly on 06.7.2004 without prejudice to his rights. He also took a plea that there was no adverse remark on any of his confidential reports and that he had not suffered any punishment during the tenure of his services and had a clean record of service. 8.Further, the other delinquents were supplied with the copies of the Enquiry Report and were provided with an opportunity to make further representations. In the departmental proceedings initiated against the petitioner, no orders were passed and he was not provided with the copy of the enquiry proceedings. He was singled out and an order of compulsory retirement was passed as a punishment, to circumvent the alleged departmental proceedings which were pending during the relevant period. The impugned order of the first respondent was passed in violation of the principles of Natural Justice and also in violation of clause 9 of the consolidated instructions issued relating to compulsory retirement under F.R.56 (d). The impugned orders were also passed on the basis of incomplete disciplinary proceedings initiated against him. 9.Even though the petitioner filed the Review Petition as early as on 17.7.2004, the first respondent, by an order dated 18.8.2005 in Letter No.2730/2004-5, rejected the same in limini. Therefore, the petitioner has filed the present writ petition before this Court. 10.According to the learned Senior Counsel appearing for the petitioner at the benefit of various postings from that of the Additional District Judge to Principal District Judge from 30.5.1997 to 23.4.2003 in the absence of any deteriorating or fall in the standard during the following 14 months, neither the recommendations https://hcservices.ecourts.gov.in/hcservices/ of the Administrative Committee of the High Court nor the order dated 24.6.2004 would be reasonably and validly sustained in the eye of law. 11.It is the further contention of the learned Senior Counsel that the petitioner's work was recognised by the Honourable High Court and as such, he was given various promotions and postings upto 23.4.2003 and if really there was a fall in the standard or his ability or in the matter of discharge of his judicial function, his Confidential Report would have clearly reflected the same and in fact, the competent authority to write the Confidential Report and also the Honourable High Court, through its memorandum dated 25.10.2002, 20.01.2003, 7.2.2003 and 16.4.2003, had recorded, with appreciation, the volume of judicial work turned out by the petitioner as Additional District Judge of Pondicherry at Karaikal. 12.Expatiating his submissions, the learned Senior Counsel appearing for the petitioner contends that the recommendations of the Administrative Committee of the Honourable High Court clearly run contrary to the petitioner's service and the consequences based on such recommendations in the order of compulsory retirement dated 24.6.2004 are clearly baseless and contrary to the guidelines pertaining to the compulsory retirement. 13.The learned Senior Counsel appearing for the petitioner submits that even assuming that certain disciplinary proceedings were pending against the petitioner, the order of compulsory retirement passed during the pendency of the enquiry proceedings is clearly a punitive one. Also, if the Administrative Committee of the High Court had relied upon any report submitted by the Enquiry Officer without communicating a copy of the report to the petitioner, any consequent recommendations made by the Administrative Committee is clearly an illegal one. 14.In any event, the first respondent/State Government ought to have considered the Review Petition of the petitioner independently by passing a reasoned order after considering his legitimate claim. 15.The second respondent in its counter has stated that on complaints received against the petitioner, the Special Officer, Vigilance Cell, High Court, Madras conducted a discreet enquiry and that the Report of the Vigilance Officer, High Court, Madras was placed before the Honourable Administrative Committee and that the said committee in its Meeting on 16.6.2000 had directed to furnish a copy of the report to the petitioner and two others viz., R.Alageswaran, Sheristadar, Principal District Court, Dindigul and N.Reghunathan, Assistant, Principal District Court, Dindigul with a direction to submit their explanations on the said report to the High Court within 15 days. The petitioner and two other staff members are provided with the copy of the report of the Special Officer, Vigilance Cell, High Court, Madras along with relevant documents and thereafter, the explanations received from them were placed before the Honourable Administrative Committee. 16.The Honourable Administrative Committee upon perusing the explanations submitted by the petitioner and two others found that https://hcservices.ecourts.gov.in/hcservices/ the same were not satisfactory and directed the framing of charges against them. 17.As against the petitioner the following 8 charges were framed. Charge No.1: "That you, Thiru. R.Balasubramanian, now Principal District Judge, Pudukottai, while functioning as Additional District Judge-cum-Chief Judicial Magistrate, Dindigul transferred 52 staff members (vide list annexed) out of 81 especially Tvl.Ramachandran, Ponraj, Rajeswaran, Pandi, Tmt.Karpagasundari and R.Balamurugan to various Courts during the period from 31.03.98 to 14.09.99, as they had not paid the amount, as bribe, as demanded by you through Thiru.Alageswaran, then Sheristadar, Additional District Judge-cum-Chief Judicial Magistrate Court, Dindigul and Thiru.N.Raghunathan, then Assistant, Principal District Court, Dindigul, thus committed the acts of corrupt practices, abuse of power, misuse of power and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules." Charge No.2: "That you Thiru.R.Balasubramanian, now Principal District Judge, Pudukottai, while functioning as Principal District Judge, Dindigul, demanded a sum of Rs.90,000/- from Thiru.Elango @ P.T.Elangovan through Thiru.Alageswaran, then Shreistadar of the Principal District Court, Dindigul for appointing him as Xerox Operator, that having received the said amount, you have appointed the said Thiru.Elango @ P.T.Elangovan as Xerox Operator, thus indulged in corruption and corrupt practices and committed the acts of abuse of power, misuse of power and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules". Charge No.3: "That you Thiru.R.Balasubramanian, now Principal District Judge, Pudukottai, while functioning as Principal District Judge, Dindigul, promoted Thiru.Sivapathasekarapandi as Head Clerk and then as Superintendent, within a period of three months, after receiving bribe through Thiru.Alageswaran, then Sheristadar, Principal https://hcservices.ecourts.gov.in/hcservices/ District Court, Dindigul, thus committed the acts of corrupt practices, abuse of power and misuse of power and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules". Charge No.4: "That you, Thiru. R.Balasubramanian, Principal District Judge, Pudukottai, while functioning as Additional District Judge-cum-Chief Judicial Magistrate, Dindigul and Principal District Judge, Dindigul, during the course of inspection of Subordinate Courts in Dindigul District received costly clothes and valuable gifts and valuable articles from the staff members of the Subordinate Courts through Thiru.R.Alageswaran, then Aheristadar, Additional District Judge-cum-Chief Judicial Magistrate Court, Dindigul and Thiru.N.Raghunathan, then Assistant, Principal District Court, Dindigul, that you also indulged in immoral activities during the course of inspection of Subordinate Court in Dindigul District, thus committed the acts of corrupt practices, abuse of power and misuse of power, failure to maintain the decorum and dignity of a Judicial Officer and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules". Charge No.5: "That you, Thiru. R.Balasubramanian, now Principal District Judge, Pudukottai, while functioning as Principal District Judge, Dindigul, allowed Tvl. Alageswaran, formerly Sheristadar and N.Raghunathan, then Assistant of the Principal District Court, Dindigul to collect a sum of Rs.300/- each from Last Grade Government Servants, Rs.850/- each from Assistants in two monthly instalments and Rs.500/- each from Junior Assistants in two monthly instalments in various Courts in Dindigul District for meeting out expenses, in connection with your inspection to Subordinate Courts in Dindigul District; that you also received your household requirements at their expenses, thus committed the acts of abuse of power, misuse of power and indulged in corrupt practices and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules". https://hcservices.ecourts.gov.in/hcservices/ Charge No.6: "That you, Thiru. R.Balasubramanian, now Principal District Judge, Pudukottai, while functioning as Additional District Judge-cum-Chief Judicial Magistrate, Dindigul, demanded and received one big tin of refined oil and 2Kgs., of coconut oil from Thiru.Veeraswamy, Head Clerk, Court of Judicial Magistrate No.III, Dindigul, through your Masalchi Thiru.Manivel; that you also demanded and received the household articles from Tvl.Sadayandi, Pattani and Ramachandran; that you used to travel in the Taxi hired by the said Thiru.Veerasamy and Pattani, Head Clerk, Court of Judicial Magistrate No.III, Dindigul, whenever you went out, at their expenses, thus committed the acts of corrupt practices, abuse of power, misuse of power and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules". Charge No.7: "That you Thiru.R.Balasubramanian, now Principal District Judge, Pudukottai, while functioning as Principal District Judge, Dindigul, through Thiru.Alageswaran, then Sheristadar, I Additional District Judge-cum-Chief Judicial Magistrate Court, Dindigul, demanded and received a sum of Rs.10,000/- on 1.3.99 from Thiru.T.Krishnan, Petition in R.C.O.P.No.61/95 pending on the file of the Principal District Munsif Court, Dindigul for influencing the then Principal District Munsif, Dindigul to pass favourable orders in respect of the petitioner, that having received the said amount, you influenced the then Principal District Munsif, Dindigul, to give a favourable judgment in the said R.C.O.P., thus indulged in corruption and committed the acts of corrupt practices, misuse of power and abuse of power and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules". Charge No.8: "That you Thiru.R.Balasubramanian, Principal District Judge, Pudukottai while functioning as Additional District Judge-cum-Chief Judicial Magistrate, Dindigul, favoured on Thiru.Ramaswamy, Advocate by granting compensation of Rs.90,000/- for a claim of Rs.1 lac in M.C.O.P.No.62/97 that you granted a compensation of Rs.2 lacs for a claim of Rs.2 lacs in M.C.O.P.No.65/99 and granted https://hcservices.ecourts.gov.in/hcservices/ compensation of Rs.1,50,000/- for claim of Rs.1,50,000/- in M.C.O.P.No.66/99 on 6.12.99, wherein the said Thiru.Ramasamy, Advocate appeared, that you passed the said orders on the date on which you were relieved from the post of Additional District Judge-cum-Chief Judicial Magistrate, Dindigul, with ulterior motive, thus committed the acts of misuse of power, abuse of power and abuse of process of law and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules". 18.The Honourable Administrative Committee in the Meeting held on 7.8.2003 resolved to appoint the Honourable Mr. Justice M.Chockalingam as an Enquiring Judge to conduct a Departmental Enquiry against the petitioner and two other ministerial staff. The Honourable Mr.Justice M.Chockalingam conducted the enquiry and submitted his findings on 17.4.2004 holding that out of 8 charges framed against the petitioners, 5 charges viz., 1, 4, 5, 6 and 8 were proved and charges 2, 3 and 7 were not proved. 19.The Administrative Committee in the Meeting on 22.3.2004, while considering the case of 18 Judicial Officers, who completed the age of 50 years during April 2004 and June 2004 in Tamil Nadu State Judicial Service and Pondicherry Judicial Service under F.R.56(2) and F.R.56(J) along with the case of the petitioner had resolved to defer the case of the petitioner. 20.On 20.4.2004, in the Administrative Committee Meeting, the findings of Honourable Mr.Justice M.Chockalingam were placed for reviewing the case of the petitioner under F.R.56(2) who was completing the age of 50 years during the month of June 2004 and the Committee had resolved as follows: "The Committee met and extensively discussed the matter. Having regard to the reasons given by the learned Judge Mr.Justice M.Chockalingam, on facts as also the discussion of the evidence of the witnesses, the Committee is of the considered opinion that the findings of the learned Judge is fit to be accepted. Accordingly, the committee hereby accepts the report." 21.The Administrative Committee of this Court, after perusing the findings submitted by the learned Judge and after verifying the conduct of the petitioner/officer and his Annual Confidential Report and all other relevant records according to the guidelines specified in G.O.Ms.No.623, dated 14.7.1993, was of the opinion that the petitioner, Principal District Judge, Pudukottai was found "not eligible" to continue any further beyond the age of 50 years and as such, he was retired compulsorily in consonance with F.R.56(2) as his continuance in service beyond 50 years was against public interest. https://hcservices.ecourts.gov.in/hcservices/ 22.The Honourable Administrative Committee's Minutes dated 20.4.2004 was approved by the Full Court on 21.4.2004. 23.As directed by this Court, the Registry addressed a D.O. Letter No.58/2004 Con-B1 dated 23.4.2004 to the Government to obtain the orders of Appointing Authority retiring the petitioner from service compulsorily under F.R.56(2) in public interest. The Government issued orders in G.O.Ms.No.893, Public (Special A) Department, dated 24.6.2004. This Court, in its Notification No.80/2004, notified retrieving the petitioner from the Tamil Nadu State Judicial Service with effect from 24.6.2004 Afternoon. 24.The Chief Secretary to Government, in his letter dated 31.7.2004, had forwarded the Review Petition submitted by the petitioner and requested the High Court to send its views to the Government. Accordingly, this Court sent its remarks on 17.12.2004 and the Government, in Letter No.2730/2004-5, Public (Special A) Department, dated 18.8.2005, had issued orders rejecting the review petition of the petitioners. 25.The procedures prescribed as per F.R.56(2) were duly complied with before passing the impugned order. Though the petitioner would have continued upto the age of 58 years in service under normal circumstances, the Administrative Committee, however, was of the opinion that the petitioner was to be retired compulsorily and the same was approved by the Honourable Full Court on 21.4.2004 and hence, there was no violation of principles of Natural Justice. 26.As per F.R.56(2), the petitioner was given 3 months salary in lieu of notice after following the due procedure. The 3 months pay was given to the petitioner on 6.7.2004 within 10 days which would not vitiate the impugned order. 27.The impugned order of the first respondent in G.O.Ms.No.893, Public (Special A) Department, dated 24.6.2004, compulsorily retiring the petitioner from service under F.R.56(2) was not a punitive one because of the fact that though disciplinary action was initiated against the petitioner, no orders were passed in the disciplinary proceedings and no stigma has also been attached. 28.Inasmuch as the orders were passed under F.R.56(2), there was no necessity to serve the enquiry findings to the petitioner and therefore, there is no violation of Principles of natural justice, as has been falsely alleged on the part of the petitioner. 29.The first respondent has adopted the counter filed by the second respondent/High Court insofar as it relates to it. 30.In support of the contention that the impugned order dated 24.6.2004, compulsorily retiring the petitioner from service, is a punitive and stigmatic one, the learned Senior Counsel appearing for the petitioner cites the decision of Honourable Supreme Court in Ram Ekbal Sharma V. State of Bihar and another (1990 II SCR 679 at page 688) wherein it is observed as follows: "It is thus, clear and evident from the counter-affidavit filed on behalf of the State https://hcservices.ecourts.gov.in/hcservices/ Government referred to hereinbefore that the basis of the impugned order of compulsory retirement from service of the appellant is not in public interest as stated in the order of compulsory retirement dated October 26, 1988. The impugned order, in fact, has been passed on the basis of the memorandum dated October 6, 1988 which is also based on the Report given by the Deputy Development Commissioner, Dumka by his letter dated September 19, 1987 without asking any explanation from the appellant and without giving him any opportunity to defend his case before the Deputy Development Commissioner. It is, therefore, wrong to say that the basis of the order is not the said memorandum as well as the report of the Deputy Development Commissioner which clearly evinces that the impugned order of compulsory retirement is a mere camouflage being couched in innocuous terms and in fact the same has been made by way of punishment." Also, in the aforesaid decision at page 693 the Honourable Supreme Court has held as follows: "On a consideration of the above decisions the legal position that now emerges is that even though the order of compulsory retirement is couched in innocuous language without making any imputations against the government servant who is directed to be compulsorily retired from service, the Court, if challenged, in appropriate cases can lift the veil to find out whether the order is based on any misconduct of the government servant concerned or the order has been made bona fide and not with any oblique or extraneous purposes. Mere from of the order in such cases cannot deter the Court from delving into the basis of the order if the order in question is challenged by the concerned government servant as has been held by this Court in Anoop Jaiswal's case [AIR 1984 SC 636]. This being the position the respondent-State cannot defend the order of compulsory retirement of the appellant in the instant case on the mere plea that the order has been made in accordance with the provisions of Rule 74(b)(ii) of the Bihar Service Code which prima facie does not make any imputation or does not cast any stigma on the service career of the appellant. But in view of the clear and specific averments made by the respondent-State that the impugned order has been made to compulsorily retire the appellant from service under the aforesaid Rule as the appellant was found to have committed grave financial irregularities leading to financial loss to the State, the impugned order cannot but be said to have been made by way https://hcservices.ecourts.gov.in/hcservices/ of punishment. As such, such an order is in contravention of Article 311 of the Constitution of India as well as it is arbitrary as it violates principles of natural justice and the same has not been made bona fide." 31.He also relies on the decision of Honourable Supreme Court in R.K.Panjetha V. Haryana Vidyut Prasaran Nigam