IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P.No.19585 of 2011 (O&M) Date of Decision : December 20, 2011 Birinder Singh ...Petitioner Versus State of Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE G.S.SANDHAWALIA Present : Mr. Gurminder Singh, Advocate, for the petitioner. Mr. B.S.Walia, Advocate, for respondent No.2. HEMANT GUPTA, J. Challenge in the present writ petition is to the order dated 20.07.2009 (Annexure P-10) retiring the petitioner from the post of District & Sessions Judge. The petitioner was appointed in the year 1983 as Sub Judge IIIrd Class-cum-Judicial Magistrate IInd Class and was promoted as Additional Civil Judge (Senior Division) in the year 1996. The petitioner was promoted as Additional District & Sessions, Judge in February, 1999. It is pleaded by the petitioner that the Annual Confidential Report (for short ‘the ACR’) of the petitioner for the last 10 years are “B+” except for the years 2001-02 and 2002-03 for which period the same were recorded as “B- C.W.P.No.19585 of 2011 (O&M) Satisfactory”. The said two ACRs alongwith the ACR for the year 1998-99 were down-graded to “B-Average” after the lapse of 8 years and conveyed to the petitioner on 08.02.2008. The petitioner has also pointed out that he was charge-sheeted in the year 1997 with the allegation of tampering with the interim orders dated 07.05.1997 and 19.05.1997 in pursuance to a complaint filed at the instance of Shri S.S.Sidhu, Advocate. Thereafter, the District & Sessions Judge, Bhatinda, was asked by the High Court to conduct a preliminary enquiry. Subsequently, a departmental enquiry was conducted by Shri S.D.Anand, the then District & Sessions Judge (Vigilance) and later Judge of this Court. On the basis of the enquiry report, a show cause notice was served upon the petitioner proposing punishment of removal from service, but vide order dated 04.11.2004 punishment of stoppage of three annual grade increments with cumulative effect was imposed. It is pointed out by the petitioner that the order dated 01.08.2008, which led to the order of premature retirement was passed by the same Judge, who was the then District & Sessions Judge and submitted his preliminary enquiry report against the petitioner. The order dated 01.08.2008 has been passed by the Hon’ble Mr. Justice H.S.Bhalla in Criminal Misc. No.5658-M of 2008 titled “Anil Narang vs. State of Punjab”, whereby the order passed by the petitioner directing the petitioner therein to furnish bank guarantee in the sum of Rs.9 lac was set aside by observing as under: “A perusal of both the orders do spell out that the aforereferred orders have been passed without assigning any cogent reason therein and they have been passed in a mechanical manner. The learned Additional Sessions Judge has mentioned in his order dated 12.12.2007 that pending service of notice, he be released on interim bail in the event of his arrest. The facts of the case have not been incorporated by him either in the order dated 12.12.2007 2 C.W.P.No.19585 of 2011 (O&M) or the order dated 12.02.2008 by virtue of which the above said order was made absolute. What to talk of assigning reasons on the basis of which pre-arrest bail was granted to the petitioner even none of the contentions either of the petitioner or the State Counsel was considered appropriate to be mentioned by the learned Additional Sessions Judge in his order dated 12.02.2008, whereby order dated 12.12.2007 was made absolute. It is, however, apt to mention here that it was imperative on the part of the trial Judge to record facts, contentions, discussions and reasons effectively while passing a judicial order finally after hearing both the parties so that it could appear that a well reasoned order has been passed in favour of either of the parties, but herein in the instant case, learned Additional Sessions Judge did not consider it necessary to give facts of the case, contentions of either of the parties, and reasoning on the basis of which, such a harsh condition of furnishing a bank guarantee in the sum of Rs.9 lac was imposed upon the petitioner. Such a conditional order was not required to be passed for the simple reason that a dispute with regard to shares of inheritance to the tune of Rs.9 lac was pending between the parties. I have gone through the various Annexures appended with the file of this case, which clearly show that a recovery suit for an amount of Rs.53,388/- is going on between the parties, which is pending consideration in a different trial Court. xxx xxx xxx It appears that the learned Additional Sessions Judge was bent upon in passing such an order, which would help the complainant for recovering the amount in question in the civil suit. All this shows that while disposing of the petition under Section 438 of the Code of Criminal Procedure, the learned Additional Sessions Judge stepped into the shoes of the executing court in order to help the complainant and as such, he has exceeded his jurisdiction while passing the impugned order dated 12.02.2008.” It may be mentioned that the petitioner filed an application for expunging of such remarks, which was dismissed on 13.07.2009 (Annexure P-9). Still further, the petitioner filed a Special Leave Petition against the orders dated 01.08.2008 and 13.07.2009, which was withdrawn on 21.07.2009. 3 C.W.P.No.19585 of 2011 (O&M) In the ACR for the year 2007-08 (for the year ending 31.03.2008), the following remarks were recorded in Column Nos.7 to 9: 7. Integrity - Does not enjoy good reputation in Bar. Though no specific written complaint was received, but while dealing with Crl. Misc. No.5658-M of 2008, it came to the notice of H.S.Bhalla, J. that the officer granted blanket bails in large number of cases. Some of the cases were for serious offences such as under Sections 302, 376, 307IPC and also NDPS. The view taken in these cases is also not consistent and is contrary to settled position of law. A list of 204 such cases alongwith orders is attached herewith. This corroborates the reputation the officer enjoyed in Bar. In my opinion, this certainly casts aspersion on his integrity. 8. General assessment - xxx Regarding strength and Shortcomings 9. Grading - ‘C’ Integrity Doubtful” The petitioner submitted a representation on 21.10.2008 against such remarks, which was rejected on 23.03.2009. Subsequent to rejection of the representation of the petitioner, an order of premature retirement of the petitioner was passed on the recommendations of this Court. The petitioner challenged the order of premature retirement before the Hon’ble Supreme Court by way of SLP, which was withdrawn on 16.08.2010 to file a petition before this Court. Thereafter, the present petition has been filed on 18.10.2010. Learned counsel for the petitioner has sought to dispute the order of premature retirement purportedly passed in exercise of the powers conferred under the Punjab Civil Services (Premature Retirement) Rules, 1975 (for short ‘the Rules’). Rule 3 (1)(a) of the said Rules confers right on an Appropriate Authority to retire an employee on the date on which he 4 C.W.P.No.19585 of 2011 (O&M) completes 25 years of qualifying service or attains 50 years of age or on any date thereafter to be specified in the notice. The said rule reads as under: “3(1)(a) The appropriate authority shall, if it is of the opinion that it is in public interest to do so, have the absolute right, by giving an employee prior notice in writing, to retire that employee on the date on which he completes twenty-five years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.” This Court has issued guidelines on 20.09.1979 to consider the case of the officers for the premature/ compulsory retirement. Relevant guidelines are as under: (i) The case of every Judicial Officer and employees subject to the control of the High Court shall be reviewed for determining his suitability for retention in service 4 months before each of the following dates, namely :- (a) when he is due to complete his qualifying service or to attain the age as may be prescribed by the relevant rules, applicable to him. (b) when he is due to attain the age of 55 years. (ii) (a) The suitability for retention in service at the time of reviews to be determined in the light of the entire service record, with particular reference to such record pertaining to the preceding 5 years. (b) Any adverse remarks earned by an employee prior to getting promotion to the higher post shall not be taken as a bar in allowing the employee concerned to continue in service beyond the specify age of qualifying service. (c) An employee with a good record of service and whose latest grading is B plus (Good) or above shall be allowed to continue in service. (iii) Once it is decided to retain a member of the Judicial Service or a member of the Staff in service beyond specified period 5 C.W.P.No.19585 of 2011 (O&M) or qualifying service or the age of 50 or 55 years, as the case may be, he shall ordinarily be allowed to continue till the next review, if due, as envisaged by clause (i) above, unless reports of facts come to notice which reflect adversely upon his integrity, effectiveness, competency or otherwise and consequently render his retention in service not to be in public interest.” The petitioner has sought to challenge the order of premature retirement inter-alia for the reason that there are no complaints against him during his tenure at Ferozepur, much less pertaining to his integrity, which may lead to an order of premature retirement. It is alleged that the learned Single Judge while deciding the application for anticipatory bail as mentioned above, called for the orders of 212 cases, pertaining to applications for grant of anticipatory bail, during his entire tenure at Ferozepur. Out of such applications, 7 applications were such which did not pertain to grant of blanket bail. These cases pertain to anticipatory bail in complaint cases. In respect of remaining, it is asserted that none of the cases pertain to offences under Sections 302, 307, 376 IPC or NDPS Act in which blanket bail was sought or granted by the petitioner. In the 4 applications pertaining to offences under Sections 302, 376 & 307 IPC, which formed part of said record, no case was registered by the Police and on the report of the Police, these applications were disposed of having become infructuous. It is pointed out that in view of the averments made in the applications, regarding harassment at the hands of the Police, three days’ time was ordered to be granted in the event of registration of the case to enable the applicant to approach the Court for his legal remedies. Such orders are passed by all other Judicial Officers and are being passed by the High Court as well. It is asserted that in no case, any blanket bail was granted by the petitioner, meaning thereby that no orders protecting the 6 C.W.P.No.19585 of 2011 (O&M) applicant against any sort of prosecution perpetually were passed by the petitioner. But still such facts were made basis by the Hon’ble Administrative Judge of Ferozepur Sessions Division to record adverse entry against the petitioner. The orders in bail applications has been passed in exercise of powers conferred in law and in the absence of any complaint, the inference drawn by the Hon’ble Administrative Judge, is not tenable. There is no other ground, which is substantiated in the remarks recorded by the Hon’ble Administrative Judge. Since there was no complaint and no specific instance, it could not have been used as a corroboration to cast and establish the aspersion on the petitioner’s integrity. The order of premature retirement has been passed on the single report of the Hon’ble Administrative Judge and that there is no material on the basis of which, such opinion could have been arrived at. Before passing an order of premature retirement, the record of the Officer has to be objectively considered and such order cannot be passed on the conclusion derived upon a mere hunch of suspicion. The order of premature retirement on the basis of a report of “doubtful integrity” casts a severe stigma on the petitioner and such order could be passed only when there is some tangible material available against him. It is also pleaded that down-grading of ACRs for the years 1998-99, 2001-02 & 2002-03 in the year 2008 was without any valid reason. Such reports have been down-graded from “B +” to “B Average” after a gap of 5 to 8 years. It is further argued that it was decided to retain the petitioner in service beyond the age of 50 years in the Full Court Meeting held on 22.01.2007. Once it is decided to retain the services of the petitioner beyond 50 years, the next review is permissible only at the age of 7 C.W.P.No.19585 of 2011 (O&M) 55 years. Therefore, the petitioner cannot be considered for premature retirement. In Bishwanath Prasad Singh Vs. State of Bihar and others (2001) 2 SCC 305, the Hon’ble Supreme Court in respect of principals to be kept in view at the time of compulsory retirement observed as under: “18. We may sum up our conclusions on this aspect as under: xxx xxx xxx 3. The High Court may, before or after the normal age of superannuation, compulsorily retire a judicial officer subject to formation of an opinion that compulsory retirement in public interest was needed. The decision to compulsorily retire must be in accordance with relevant service rules independent of the exercise for evaluation of judicial officer made pursuant to All India Judges’ Association Vs. Union of India (1993) 4 SCC 288. Recommendation for compulsory retirement shall have to be sent to State Government which would pass and deliver the necessary orders. xxx xxx xxx 33. …An entry consisting of a few words, or a sentence or two, is supposed to reflect the sum total o the impressions formulated by the Inspecting Judge who had the opportunity of forming those impressions in his mind by having an opportunity of watching the judicial officer round the period under review. In the very nature of things, the process is complex and the formulation of impressions is a result of multiple factors simultaneously playing in the mind. The perceptions may differ. In the very nature of things there is a difficulty nearing an impossibility in subjecting the entries in confidential rolls to judicial review. Entries either way have serious implications on the service career. Hence the need for fairness, justness and objectivity in performing the inspections and making the entries in the confidential rolls.” The expectations from the Judicial Officers has been culled down by Hon’ble Supreme Court in Nawal Singh Vs. State of U.P. (2003) 8 SCC 117. It was observed as under: “2. At the outset, it is to be reiterated that the judicial service is not a service in the sense of an employment. Judges are discharging their 8 C.W.P.No.19585 of 2011 (O&M) functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Further, the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. If such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same, particularly because the order of compulsory retirement is based on the subjective satisfaction of the authority. xx xx xx 12. … Further, it is impossible to prove by positive evidence the basis for doubting the integrity of the judicial officer. In the present day system, reliance is required to be placed on the opinion of the higher officer who had the opportunity to watch the performance of the officer concerned from close quarters and formation of his opinion with regard to the overall reputation enjoyed by the officer concerned would be the basis. 13. … the lower judiciary is the foundation of the judicial system. We hope that the High Courts would take appropriate steps regularly for weeding out the dead wood or the persons polluting the justice delivery system.” In Chandra Singh and others Vs. State of Rajasthan and another (2003) 6 SCC 545, it was observed as under: “47. In the instant case, we are dealing with the higher judicial officers. We have already noticed the observations made by the Committee of three Judges. The nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility.” In Rajesh Kohli v. High Court of Jammu and Kashmir, (2010) 12 SCC 783, it was observed as under: 31. The High Court has a solemn duty to consider and appreciate the service of a judicial officer before confirming him in service. The district judiciary is the bedrock of our judicial system and is positioned at the primary level of entry to the doors of justice. In providing the opportunity of access to justice to the people of the country, the judicial officers who are entrusted with the task of adjudication must officiate in a manner that is becoming of their position and responsibility towards the society. 9 C.W.P.No.19585 of 2011 (O&M) 32. Upright and honest judicial officers are needed not only to bolster the image of the judiciary in the eyes of the litigants, but also to sustain the culture of integrity, virtue and ethics among Judges. The public's perception of the judiciary matters just as much as its role in dispute resolution. The credibility of the entire judiciary is often undermined by isolated acts of transgression by a few members of the Bench, and therefore it is imperative to maintain a high benchmark of honesty, accountability and good conduct. In Pyare Mohan Lal v. State of Jharkhand, (2010) 10 SCC 693, the Hon’ble Supreme Court observed as under: “18. Thus, the law on the point can be summarized to the effect that an order of compulsory retirement is not a punishment and it does not imply stigma unless such order is passed to impose a punishment for a proved misconduct, as prescribed in the statutory rules. (See Surender Kumar v. Union of India (2010) 1 SCC 158). The Authority must consider and examine the overall effect of the entries of the officer concerned and not an isolated entry, as it may well be in some cases that in spite of satisfactory performance, the authority may desire to compulsorily retire an employee in public interest, as in the opinion of the said Authority, the post has to be manned by a more efficient and dynamic person and if there is sufficient material on record to show that the employee “rendered himself a liability to the institution”, there is no occasion for the court to interfere in the exercise of its limited power of judicial review. xxx xxx xxx 29. The law requires the Authority to consider the "entire service record" of the employee while assessing whether he can be given compulsory retirement irrespective of the fact that the adverse entries had not been communicated to him and the officer had been promoted earlier in spite of those adverse entries. More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement. The case of a Judicial Officer is required to be examined, treating him to be differently from other wings of the society, as he is serving the State in a different capacity. The case of a Judicial Officer is considered by a Committee of Judges of the High Court duly constituted by Hon'ble the Chief Justice and then the report of the Committee is placed before the Full Court. A decision is taken by the Full Court after due deliberation on the matter. Therefore, there is hardly any chance to make the allegations of non- application of mind or mala fide.” 10 C.W.P.No.19585 of 2011 (O&M) Recently, in Kazia Mohammed Muzzammil v. State of Karnataka, (2010) 8 SCC 155, the Hon’ble Court observed as under: “17. Highly competitive standard of service discipline and values are expected to be maintained by the Judicial Officers as that alone can help them for better advancement of their service career. In such circumstances, the significance of proper superintendence of the High Court over the Judicial Officers has a much greater significance than what it was in the past years. In fact, in our view, it is mandatory that such confidential reports should be elaborated and written timely to avoid any prejudice to the administration as well as to the officer concerned.” Before we consider the arguments raised by the petitioner in the light of the above standards from a Judicial Officer and the role of High Court at the time of considering the case of a Judicial Officer for compulsory or premature retirement, we may reproduce summary of the ACRs: Year Remarks by High Court 1983-84 B- Average/Satisfactory 1984-85 B- Average/Satisfactory 1985-86 B- Average/Satisfactory 1986-87 B- Satisfactory 1987-88 B- Satisfactory 1988-89 B- Plus (Good) 1989-90 B- Plus (Good) 1990-91 B- Satisfactory 1991-92 B- Satisfactory 1992-93 B- Satisfactory 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 B- Average 1999-2000 B- Plus (Good) 2000-2001 B- Plus (Good) 2001-2002 B- Average 2002-2003 B- Average 2003-2004 No Remarks 2004-2005 B- Plus (Good) 2005- 2006 B- Plus (Good) 2006- 2007 B- Plus (Good) 2007- 2008 C- Below Average Integrity Doubtful 11 C.W.P.No.19585 of 2011 (O&M) A perusal of the records produced by the learned counsel for the High Court shows that Shri H.S.Bhalla, as the then District & Sessions Judge, Bhatinda, has assessed the petitioner as ‘Good’ for the period from 01.12.1997 to 31.03.1998. Still further, the report for the year 1998-99 was “B Plus (Good)” recorded by the Hon’ble Administrative Judge, but down- graded to “B Average” in view of the punishment given vide Full Court decision dated 03.11.2004. The decision of the Full Court dated 03.11.2004 reads as under:- “The matter regarding report dated 20.01.2004 of Hon’ble Charge-Sheet Committee in respect of reply dated 17.03.2003 to the show cause notice served upon Shri Birinder Singh, the then Additional Civil Judge (Senior Division), Talwandi Sabo, now Additional District & Sessions Judge, under suspension with headquarters at Muktsar was considered along with the note of the Registrar and it was decided that a penalty of stoppage of three annual increments with cumulative effect be imposed upon the officer and he be reinstated in service and posted at the same station.” For the year 2001-02, the Administrative Judge has recorded “B Average” on 03.05.2002 and it is the said report, which was finally accepted by the Full Court. For the year 2002-03, the Hon’ble Administrative Judge, has recorded that since the Officer was under suspension, therefore, the remarks recorded on his work and conduct for the year 2001-02 be treated as inspection remarks for the year 2002-03. Thus, the reports for the years 2001-02 and 2002-03 were not down-graded. The ‘B Average’ remarks recorded by the Administrative Judge were accepted by the Full Court. Still further, the list of 212 cases for grant of anticipatory bail is available on the Confidential Personal File of the petitioner. Such bail applications relate to the period from 06.06.2005 to 17.04.2008. In large 12 C.W.P.No.19585 of 2011 (O&M) number of cases, FIR Numbers or the offences in respect of which anticipatory bail has been sought, it not disclosed, whereas the other cases are for varying offences such as under Sections 376/363/366; 406/420/465/467/468/471; 406/498-A; 420/419/465/467/468/471/120-B; 302/34; 325/326/452/427; 323/308/148/149; 363/366 & 307/506/148/149/34 of the IPC as well as of NDPS Act.