Chanbasappa Dhanappa Konale vs High Court Of Judicature And Ors.
2004 Latest Caselaw 12 Bom

JUDGMENT

R.M. Lodha, J.

1. This appeal is directed against the judgment dated 2nd November, 1996 passed by the learned Single Judge dismissing the writ petition filed by the appellant challenging the order of compulsory retirement.

2. For the sake of convenience we shall refer the appellant as the petitioner. The petitioner was appointed on 8th March, 1976 as Civil Judge, Junior Division and Judicial Magistrate, First Class by the Governor of Maharashtra. On 29-12-1986, he was promoted to the post of Chief Judicial Magistrate. Thereafter, on 26-12-1988, the petitioner was promoted as an Additional District and Sessions Judge. He was posted on deputation to the ex-cadre post of Member, Industrial Court at Bombay by order dated 1-12-1993. By order dated 13th September, 1995, the State Government passed the order retiring the petitioner compulsorily in the public interest from the date of receipt of the said order. This order was challenged by the petitioner in the writ petition under Article 226 of the Constitution of India which as indicated above came to be dismissed by the learned Single Judge by order dated November 2, 1996 giving rise to the present appeal.

3. The Annual Confidential Reports on the work of the petitioner have been maintained. We were shown the original record by the learned A.G.P. and it appears therefrom that for the reporting year 1989-90, inter alia, the remarks recorded by the five Judge committee of the High Court on administrative side read thus -

  ______________________________________________________________________
Remarks regarding his behaviour towards       :   Unsatisfactory
members of the Bar and the Public
Remarks about  reputation  and  integrity,    :   Not good 
impartiality and character.
General remarks, if any.                      :   Needs to be watched
Net result                                    :   Average
________________________________________________________________________
 

For the reporting year 1990-91, in the Annual Confidential Reports on the work of the petitioner inter-alia, the following remarks have been recorded by the five Judge committee:
 ______________________________________________________________________
Remarks regarding his behaviour towards        :   Unsatisfactory
members of the Bar and the Public
Remarks  about  reputation  and  integrity,    :   Not good 
impartiality and character.
General remarks, if any.                       :   Needs to be watched
Net result                                     :   Average
_______________________________________________________________________

 

In respect of the reporting year 1991-92, in the Annual Confidential Reports on the work of the petitioner inter-alia the following remarks were by the committee of four Judges of this Court:
 ______________________________________________________________________
Remarks regarding  his  behaviour towards       :   Unsatisfactory
members of the Bar and the Public
Remarks  about  reputation  and  integrity,     :   Not good
impartiality and character.                         Needs to be watched
Net result                                      :   Average
_______________________________________________________________________

 

For the reporting year 1992-93, in the Annual Confidential Report on the work of the petitioner, the four Judge Committee of this Court recorded following remarks :
 _______________________________________________________________________
Remarks   about   the   supervision   of   the  :   Needs improvement
distribution of business and his control over
the subordinate Courts.
Remarks regarding his behaviour towards         :   Fair. Keeps close ties with
members of the Bar and the Public.                  politicians.
Remarks  about  reputation  and   integrity,    :   Needs watching
impartiality and character.
General remarks, if any.                        :   Needs to be watched.
Net result                                      :   Average
_______________________________________________________________________

 

4. It is not in dispute that the aforesaid remarks recorded in the Annual Confidential Reports for the reporting years 1989-90, 1990-91, 1991-92 and 1992-93 as noticed above were not communicated to the petitioner. The question before us is : whether the order passed by the learned Single Judge rejecting petitioner's challenge to the order of compulsory retirement suffers from any infirmity warranting interference by us.

5. In Union of India v. M.E. Reddy and Anr. , it was laid down by the Supreme Court that uncommunicated adverse remarks can be relied upon while passing the order of compulsory retirement. In paragraphs 24 and 27 of the report, the Supreme Court held thus:--

"24. Learned counsel for Reddy heavily relied on the decision of this Court in the case of State of Uttar Pradesh v. Chandra Mohan Nigam (supra) and contended that as the Government of India while passing the impugned order had not considered the report of the Review Committee the order is vitiated by an error of law. We have gone through this decision and we are unable to agree with the contentions put forward by learned counsel for Reddy. The decision referred to above is not an authority for holding that the decision of the Review Committee is binding on the Government of India. All that is necessary is that the Government of India should, before passing an order under Rule 16(3), consider the report of the Review Committee which is based on full and complete analysis of the history of the service of the employee concerned. In the instant case, it is clearly pleaded by the appellants in the High Court that the report of the Review Committee was in fact considered by the Government of India before passing the impugned order. The confidential file placed before us also clearly shows that on the note sheet the notes by the secretary on the recommendations of the Review Committee the Home Minister, Mr. Brahmananda Reddy has appended his signatures and has passed the order that Reddy should be compulsorily retired. Furthermore, in Nigam's case (supra) referred to above what had weighed with the Court was that after the Review Committee had submitted its report to the Government, the Government ordered a second Review Committee just in order to enable the Review Committee to give an adverse report against the officer concerned. Such a course of, action was condemned and deprecated by this Court. In the instant case, however, there is no allegation by Reddy that any second Committee was ever appointed. Even so in Nigam's case (supra) this Court did not depart from the ratio laid down in Sinha's case (supra) and followed by later cases but observed as follows:

"As stated earlier, even in the case of compulsory retirement under Rule 16(3), an order may be challenged in a Court if it is arbitrary or mala fide. If, however, the Government reaches a decision to prematurely retire a Government servant, bona fide, the order, per se, cannot be characterised as by way of punishment since it does not cast any stigma on the employee nor does the employee forfeit any benefit which he has already earned by his service, nor does it result in any civil consequences."

27. Lastly, Mr. Krishnamurty Iyer, learned counsel for Reddy heavily relied on a decision of the Calcutta High Court in the case of Chief Security Officer Eastern Rly v. Ajoy Chandra Bagchi (1975) 2 SLR 660. On a perusal of this decision we are of the opinion that this case was not correctly decided as it is directly opposed to the ratio decidendi of J.N. Sinha's case (supra) where this Court held that the rule in question expressly excludes the principles of natural justice and, therefore, it is manifest that the Calcutta High Court was in-error in basing its decision on rules of natural justice. The Calcutta High Court in this case had observed as follows :--

"Thus even if the Railway authorities had absolute right to retire the Respondent petitioner subject to the requirements as mentioned hereinbefore and in terms of paragraph 3 of Chapter XVII of the Regulations read with item 6 of the instructions in the Form in Appendix XVIII in the admitted position of the case, viz., certain adverse entries were taken into consideration in having him compulsorily retired, the action as taken is thus certainly against all principles of natural justice and norms of fair play and as such the action so taken cannot be supported. The said right under paragraph 3 of Chapter XVII read with item 6 of the instructions in the Form in Appendix XVIII can be used and those principles can be applied or resorted to subject to the principles of natural justice, which incidentally is the restraint put on the pretended misuse of power."

"The High Court seemed to rely on certain adverse entries which were taken into consideration when the order of retirement was passed. We have already pointed out relying on the dictum of this Court laid down by Hidayatullah, C.J. that the confidential reports can certainly be considered by the appointing authority in passing the order of retirement even if they are not communicated to the officer concerned. Thus, the two grounds on which the Calcutta decision was based are not supportable in law. For these reasons, therefore, we hold that the decision of the Calcutta High Court referred to above was wrongly decided and is hereby overruled."

6. The Supreme Court, thus, held in M.A. Reddy, relying upon the decision in R.L. Butail v. Union of India and Ors., that the confidential reports can certainly be considered by the appointing authority in passing the order of retirement even if they are not communicated to the officer concerned. The Supreme Court also observed in para 10 of the report that the Court while examining the aspect as to whether the power exercised by the appointing authority in compulsorily retiring the employee suffers from colourable exercise of jurisdiction or arbitrariness or mala fide cannot delve deep into the confidential or secret records of the Government to fish out materials to prove that the order is arbitrary or mala fide, though the Court has undoubted power subject to any privilege or claim that may be made by the State to send for the relevant confidential personal file of the Government servant and peruse it for its own satisfaction without using it as evidence.

7. But in two subsequent decisions viz. Brij Mohan Singh Chopra v. State of Punjab, and Baidyanath Mahapatra v. State of Orissa and Anr., , the view was taken by the Supreme Court that uncommunicated adverse entries could not be legally relied upon while making the order of compulsory retirement. The decisions in Brij Mohan Singh Chopra and Baidyanath Mahapatra taking the view inconsistent with the earlier decision in M.E. Reddy were considered by three Judge Bench in Baikuntha Nath Das and anr. v. Chief District Medical Officer, Baripada and anr., . The decisions in Brij Mohan Singh Chopra and Baidyanath Mahapatra were overruled and the three Judge bench of the Supreme Court in Baikuntha Nath Das laid down the following principles:--

"32. The following principles emerge from the above discussion :

(i)     An order of compulsory retirement is not a punishment. It implies no stigma nor any suggestion of misbehaviour.
 

(ii)    The order has to be passed by the Government on forming the opinion that it is in the public interest 'to retire' a government servant compulsorily. The order is passed on the subjective satisfaction of the Government.
 

(iii) Principles of natural justice have no place in the context of an order of compulsory retirement. This does not mean that judicial scrutiny is excluded altogether. While the High Court or this Court would not examine the matter as an appellate Court, they may interfere if they are satisfied that the order is passed (a) mala fide, or (b) that it is based on no evidence, or (c) that it is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material in short; if it is found to be a perverse order,

(iv) The Government (or the Review Committee, as the case may be) shall have to consider the entire record of service before taking a decision in the matter of course attaching more importance to record of and performance during the later years. The record to be so considered would naturally include the entries in the confidential record/character roles, both favourable and adverse. If a government servant is promoted to a higher post notwithstanding the adverse remarks, such remarks lose their sting, more so, if the promotion is based upon merit (selection) and not upon seniority.

(v) an order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration. That circumstance by itself cannot be a basis for interference.

Interference is permissible only on the grounds mentioned in (iii) above."

8. The legal position with regard to the compulsory retirement of the Government employee is, thus, fairly settled in the light of the judgment of the Supreme Court in Baikuntha Nath Das. The consideration of uncommunicated adverse, remarks by the appointing authority while reaching the decision that it is in public interest to compulsorily retire the employee shall not vitiate such decision unless it is found to suffer from mala fides, arbitrariness and perversity.

9. There was no challenge to the order of compulsory retirement on the ground of mala fides before the learned Single Judge nor such challenge is raised before us. The challenge is on the ground that the Annual Confidential Reports as indicated above were based on no material and rather were not justified in view of the reports of the concerned District Judges from time to time and for the relevant period. The contention is that the remarks by the committee are unsupportable; the Court must delve into such adverse remarks to find out their veracity. We are afraid, the contention of the petitioner can hardly be accepted. It is apparent from the available material that for the four years immediately preceding the order of compulsory retirement, there are adverse remarks recorded in the Annual Confidential Reports. The said remarks were recorded by the committee of multiple Judges of this Court. The learned counsel for the petitioner was not justified in contending that all these remarks were recorded in one go at one time. The fact of the matter is that for the reporting years 1989-90 and 1990-91. The remarks were recorded by a committee of five Judges of this Court, of course, on one date viz. 22nd February, 1992 while for the reporting year 1991-92. The remarks were recorded on 31st July, 1993 by a different committee of four Judges. For the reporting year 1992-93 the remarks were recorded again by a different committee of four Judges of this Court on 31st July, 1994. In the remarks recorded for the reporting years 1989-90 and 1990-91 it is recorded that the petitioner's behaviour towards the Bar and the Public was unsatisfactory and that his reputation, integrity, impartiality and character was 'not good and needed to be watched'. By a different committee of four Judges for the reporting year 1991-92, the petitioner's behaviour towards the members of the Bar and the Public was recorded unsatisfactory and his reputation, integrity, impartiality and character was recorded 'not good' and 'needs to be watched'. For the reporting year 1992-93, yet another committee of four Judges of this Court recorded the remarks regarding petitioner's behavior towards the members of the Bar and Public, 'keeps close ties with politicians' and about his reputation, integrity, impartiality and character, 'needs watching'. Thus, three different committees in the immediately preceding four years of the order of compulsory retirement found petitioner's behaviour unsatisfactory and his reputation 'not good'. A judicial officer is like Caesar's wife and his conduct inside and outside the Court has to be above suspicion. The petitioner's confidential record as noticed above for the last four years is not only not good but rather his reputation, integrity, impartiality and character has been recorded as 'not good'. There cannot be any doubt that power of the appointing authority to compulsorily retire the Government servant acts as a check and reasonable measure to ensure efficiency of service free from corruption. In the matter of compulsory retirement of a judicial officer, it is well settled that when the High Court-takes the view that an order of compulsory retirement should be made, the adequacy or sufficiency of such materials can not be questioned unless the materials are absolutely irrelevant for the purpose of compulsory retirement.

10. Mr. C.U. Singh, the learned counsel for the petitioner placed heavy reliance on Madan Mohan Choudhary v. State of Bihar and Ors., and submitted that the correctness of the remarks given by the High Court to the petitioner in the confidential role for the years 1989-90, 1990-91, 1991-92 and 1992-93 could be gone into and such remarks could not have been made foundation for the order of compulsory retirement. We are afraid, the judgment of the Supreme Court in Madan Mohan Choudhary cannot be applied in the facts and circumstances of the present case. In Madan Mohan Choudhary, the Apex Court in para 39 of the report observed that the remarks were recorded in the character roll of the appellant therein at one go and were not recorded in normal course. The Apex Court observed that the said remarks were recorded when the Standing Committee of the High Court had already formed opinion to compulsory retire the appellant therein from service. In the backdrop of these facts, in Madan Mohan Choudhary, the Apex Court held that if the remarks for the years 1991-92, 1992-93, and 1993-94 were excluded, principle (iii) laid down in Baikunth Nath Das case would be applicable and the order of compulsory retirement of the appellant therein would be held as arbitrary. The present case is entirely different case where the remarks for the years 1989-90, 1990-91, 1991-92 and 1992-93 were recorded by three different committees of this Court in the normal course. The remarks for the years 1991-92 and 1992-93 were recorded on different dates by the different committees which recorded the remarks for the years 1989-90 and 1990-91. In the present case the remarks were not recorded in one go. There are no mala fides alleged. In Madan Mohan Choudhary, the Standing Committee of the High Court had already formed an opinion to compulsorily retire the appellant from service and it was found that remarks were not recorded in normal course. Moreover, in Madan Mohan Choudhary, though order of compulsory retirement was passed in the year 1996, there was no record available for the years 1994-95 and 1995-96. Madan Mohan Choudhary's case, therefore, has no application in the facts and circumstances of the present case. On the other hand, we find that in the instant case the material was available on the basis of which opinion could be formed that it was in public interest to compulsorily retire the petitioner. We do not deem it necessary to deal with the matter at length as we find that the learned Single Judge has considered the matter elaborately and we concur with his view and find no case for interference.

11. Appeal is, accordingly dismissed. No costs. Certified copy expedited.