Brijinder Kumar Aggarwal vs State of Haryana

Hemant Gupta, J.—The challenge in the present writ petition is to an order dated 11.02.2003 (Annexure P-1), whereby petitioner was retired in terms of Clause (d) of Rule 3.26 of Punjab Civil Services Rules, Volume I, Part I, read with Rule 5.32-A(c) of Punjab Civil Services Rules, Volume II, as applicable to State of Haryana. The challenge in the writ petition is also to the recording of Annual Confidential Reports (for short ''ACR'') for the year 1999-2000 communicated on 23.01.2001 and on 30.01.2003 (Annexure P-5 and P-7).

The challenge is also to the communication dated 04.02.2003 (Annexure P-2) issuing charge-sheet proposing action under Rule 7 of Haryana Civil Services (Punishment & Appeal), Rules, 1987. The challenge is also to legality and validity of order dated 24.05.2003 (Annexure P-3), whereby the suspension effected vide order dated 16.05.2000 has been revoked w.e.f. 21.01.2013 but the period of suspension has been ordered to be treated as not having spent on duty.

The petitioner has challenged the aforesaid actions pointing out that he joined Judicial Service in the State of Haryana in the month of May, 1977 (having born on 27.01.1947). The petitioner was promoted as Senior Subordinate Judge and later in the year 1992 as a Member of Superior Judicial Service. The petitioner claims to have rendered about 25 years of unblemished service.

The petitioner asserts that, all though, he has earned very good reports except in the year 1999-2000, when he was graded "average and doubtful integrity". The basis of the said remarks is said to be a pseudonymous complaint made by the name of one Sumer Chand Jain. On the basis of said complaint, report was called by the High Court from the learned District Judge, Karnal, who sent his report on 01.05.2000. The learned Administrative Judge recommended that a preliminary enquiry be made by District & Sessions Judge (Vigilance), Haryana and also proposed transfer of the petitioner from Panipat. The complaint was that the petitioner is minting money in false and frivolous cases filed through one Shiv Bhargav, Advocate, Kurukshetra.

On the basis of above recommendations, the Full Court resolved to suspend the petitioner pending enquiry. The petitioner was placed under suspension on 16.05.2000 in contemplation of disciplinary proceedings. A tentative charge-sheet was placed before the Committee for approval. But, the Committee in its meeting held on 10.01.2001 directed that preliminary enquiry into the matter be conducted. The recommendations of the Committee were approved by the Full Court on 23.04.2001. Thereafter, the preliminary fact finding enquiry was conducted by District & Sessions Judge (Vigilance), Haryana. During the pendency of such enquiry, three more complaints were received. The learned District & Sessions Judge (Vigilance), Haryana, submitted its report on 01.10.2001. The report was put up before a Committee. The Committee approved the charge-sheet In its meeting held on 02.08.2002. The said draft charge-sheet was approved by the Full Court on 24.01.2003 which was served upon the petitioner on 04.02.2003.

It is pleaded by the petitioner that the Administrative Judge has given average remarks in the ACR for the year 1999-2000, which was recorded in the month of January 2001, after lapse of more than 9 months from the close of the year in question without any objectivity or existent material on record or otherwise. In column No. 6 of the ACR, the integrity of the petitioner was shown to be doubtful and in column No. 11 the petitioner was graded "B-Average''. It is alleged that the adverse remarks were recorded without any basis by a reflection of personal whims and fences. The petitioner could not and is still not able to correlate any remark with any fact, circumstances or material which could give, arise the occasion for such an entry However, the remarks recorded by the Administrative Judge was modified by the Court to C-Below Average'' by letter dated 30.01.2003, though, the compulsory retirement of the petitioner was recommended on 28.01.2003. The petitioner has alleged that the Administrative Judge was acting inimically towards the petitioner and was not acting fairly, reasonably and impartially. The Administrative Judge was Member of the Sub Committee which had initiated the enquiry. The petitioner further avers that the cases of Sh. Shiv Bhargav, Advocate, were retained in his Court, in view of an application dated 26.08.1998 that all cases filed by him be entrusted to one Court as he is a Practising Advocate at Kurukshetra. He has pointed out that the charge-sheet is in respect of 21 cases of Sh. Shiv Bhargav, whereas he has only filed 12 cases while in remaining 9 cases he was engaged later on. He has also pointed out that only 11 cases of Sh. Bhargav were decided during his entire posting at Panipat when he was responsible for entrusting of cases filed in Panipat Revenue District and in the orders passed in the cases, the petitioner has not given any undue advantage to the cases decided.

In reply on behalf of the State, it is averred that a single entry of integrity doubtful in the service record is sufficient for compulsory retirement. In reply filed on behalf of the High Court it is, inter alia, averred that an order of pre-mature retirement in public interest is not punitive in nature and the employee is entitled to receive all the retrial benefits. The Full Court recommended to the State Government for retirement of the petitioner in public interest, Such order has been passed by the competent authority on an objective assessment of the service record of the petitioner and not by way of punishment. It is further averred that in the meeting of the Full Court on 24.01.2003, while considering the matter regarding retention in service of the petitioner beyond the age of 55 years, it was decided that suspension of the petitioner be revoked and having regard to his service record, he be not retained in service and the recommendation be made to Haryana Government that petitioner be retired forthwith on payment of 3 months'' pay and allowances in lieu of notice period. On such recommendation, the order of retirement has been passed on 11.02.2003. The issue as to how the suspension period should be treated was considered in the subsequent Full Court meeting held on 24.05.2003. It was decided that the period be not treated to have been spent on duty. Therefore, imposition of such a condition does not entitle him to treat his suspension period as a duty period.

It is also averred that the petitioner was graded "B Average/satisfactory" in the ACRs for the year 1977-78 to 1980-81 and was graded "C-Below Average Integrity Doubtful" for the year 1999-2000. It was held that the Hon''ble Administrative Judge recorded "B-Average Integrity Doubtful" against the petitioner on the basis of sufficient material.

It may be noticed that initially, the Hon''ble Administrative Judge was impleaded as respondent No. 3 in the present writ petition but on 17.04.2006, the petitioner made a statement to delete the Administrative Judge from the array of parties.

Learned counsel for the petitioner has vehemently argued that the report of the learned District & Sessions Judge Karnal, Haryana was by an Officer, who was inimical to the petitioner. Such report lacked objectivity and was a result of pre-conceived notions of the District Judge against the petitioner. Though, the cases of Sh. Shiv Bhargav, Advocate, were retained in his Court but none of the orders passed in such cases reflect any undue benefit in the cases filed. It was a bona fide act to retain cases of Sh. Shiv Bhargav, an Advocate from the Kurukshetra so as to facilitate the conduct of proceedings but there was neither any lack of bona fides or any nexus which Sh. Bhargav, which may led to report by the learned District Judge and later the adverse remarks. It is argued that the entire service record of the petitioner is good except the remarks for the year 1999-2000 which have been made basis to pre-mature retire the petitioner. It is also pointed out that the Hon''ble Administrative Judge has recorded adverse remarks in the ACR for the year 1999-2000 for the year ending March 2000 which was communicated on 23.01.2001. However, such remarks were confirmed as C-Below Average Integrity Doubtful'' in the Full Court meeting held on 24.1.2003 and were communicated on 30.01.2003 (Annexure P-7). Such remarks were finalized after considering the representation submitted by the petitioner on 26.04.2002.

It is argued that no punishment consequent to disciplinary proceedings initiated against the petitioner have been imposed, therefore, the suspension period has to be treated as duty period for all intents and purposes. The pay for the suspension period can be withheld only if the petitioner is punished for any misconduct as a result of disciplinary proceedings Therefore, the revocation of suspension period from 24.01.2003, the date of decision of the Full Court is illegal and in fact, the petitioner is entitled to revocation of suspension from the date it was passed i.e. 16.05.2000.

Learned counsel for the petitioner relied upon the judgments reported as High Court of High Court of Punjab and Haryana Through R.G. Vs. Ishwar Chand Jain and Another, ; Madan Mohan Choudhary Vs. The State of Bihar, ; High Court of Judicature at High Court of Judicature at Allahabad Through Registrar Vs. Sarnam Singh and Another, ; S.J. Pathak. Ex-ADJ v. State of Gujarat and others 2009 (4) R.C.R. (Civil) 936 (Gujarat) and Narender Kumar v. State of Gujarat 1999 (4) S.C.T. 173 (Gujarat).

We have heard learned, counsel for the parties. From the perusal of the record and the contention raised, it transpires that it was on the basis of pseudonymous complaint submitted under the name of one Sumer Chand Jain, an enquiry was conducted by the learned District Judge into the allegation of deciding the cases of one Advocate namely Sh. Shiv Bhargav by the petitioner The learned Administrative Judge recorded remarks as "Integrity Doubtful" in the column No 6 of the ACR but in column No. 11 graded "B-Average Integrity Doubtful". The representation of the petitioner against the adverse remarks was considered and finalized by the Full Court as "C-Integrity Doubtful" on 24.01.2003.

Simultaneously, the issue of charge-sheet for misconduct in terms of Rule 7 of Haryana Civil Services (Punishment and Appeal) Rules, 1987 was in progress. The issue of such draft charge-sheet was earlier considered by the Committee of which the learned Administrative Judge was the Member. It was recommended on 10.01.2001 to conduct a preliminary enquiry in the matter before issuing charge sheet. The recommendations of the Committee were considered by the Full Court on 23.4.2001, when it was decided that the preliminary fact finding enquiry be conducted by District & Sessions Judge (Vigilance), Haryana. The learned District & Sessions Judge (Vigilance), Haryana, submitted his report on 01.10.2001. The report and three complaints received during the pendency of enquiry were considered by the Sub Committee for the approval of the charge-sheet. The Sub Committee approved the draft charge-sheet in its meeting held on 02.08.2002 The draft charge-sheet was approved by the Full Court in its meeting held on 24.01.2003. The charge-sheet was served upon the petitioner on 04.02.2003.

It, thus, transpires that on 24.01.2003, two decisions were taken i.e. one was to recommend pre-mature retirement of the petitioner in terms of Rule 3.26(d) of Punjab Civil Services Rules, Volume I, Part I read with Rule 532A(c) of Punjab Civil Services Rules, Volume II, as applicable to the State of Haryana; and second to charge-sheet the petitioner for a misconduct in terms of Rule 7 of Haryana Civil Services (Punishment & Appeal), 1987. It is the recommendations of the Full Court, which were accepted on 11.02.2003 and the petitioner pre-maturely retired.

The question; whether the adverse remarks recorded by the Administrative Judge are based upon material or not has been subject matter of adjudication by the Hon''ble Supreme Court in Rajendra Singh Verma (Dead) through L.Rs Vs. Lt. Governor of NCT of Delhi and Another, . The judgments referred to by the learned counsel for the petitioner have been considered in Rajendra Singh Verma''s case (supra). The aforesaid judgment along with many other judgments was considered by this Division Bench in CWP No. 13720 of 2013 titled as Chaman Lal Mohal v. High Court of Punjab & Haryana Chandigarh and another'', decided on 12.07.2013, wherein it was held to the following effect:

The Hon''ble Supreme Court [Rajendra Singh Verma (Dead) through LRs and others v. Lieutenant Governor (NCT of Delhi),] has considered all the judgments referred to by learned counsel for the petitioner before this Court and taken a view that in the case of a Judicial Officer it is not necessary to limit the "material" only to written complaints or "tangible" evidence pointing finger at the integrity of the judicial officer. Such evidence may not be forthcoming in many cases. Therefore, the argument that there was no tangible material on the basis of which adverse report could be recorded by the Administrative Judge lacks any merit.

In view of the said decision, the material, the basis of ACR, can be tangible or intangible information from any source. Thus, the recording of ACR cannot be permitted to be disputed by the petitioner.

The orders of pre-mature retirement has been passed in terms of Rule 3.26 (d) of Punjab Civil Services Rules, Volume I, Part I read with Rule 5.32 A (c) of Punjab Civil Services Rules, Volume II, as applicable to the State of Haryana, which contemplates the consideration of pre-mature retirement of a Judicial Officer on attaining age of 55 years. In view of the judgments considered in C.L. Mohal''s case (supra), we find that entry of integrity doubtful is sufficient material to pre-maturely retire a Judicial Officer.

Therefore, we do not find that recording of adverse remarks by the Full Court on 24.01.2003 as communicated on 30.1.2003 (Annexure P-7) and the order of pre-mature retirement can be said to be suffering from patent illegality and irregularity, which may warrant interference in exercise of power of judicial review under Article 226 of the Constitution of India.

However, a perusal of reply filed on behalf of the High Court does not disclose the conclusion of the enquiry proceedings imitated on 04.02.2003. Since the enquiry proceedings initiated against the petitioner vide charge-sheet dated 04.02.2003 have not resulted into punishment (minor or major), as per reply filed, the order of treating the period of suspension from 16.05.2000 till 23.01.2003 as non-duty period is not justified, it also being without providing any opportunity of hearing. Rule 7.3 sub-Rules (2) and (3) deal with the period of suspension as to when such period can be treated as period spent on duty. Rule 7.3 is reads as under:

7.3. (1) When a Government employee, who has been dismissed, removed, compulsorily retired, or suspended, is reinstated or would have been reinstated but for his retirement on superannuation the authority competent to order the reinstatement shall consider and make a specific order:-

(a) regarding the pay and allowances to be paid to the Government employee for the period of his absence from duty, occasioned by suspension and/or dismissal, removal or compulsory retirement ending with his reinstatement on or the date of his retirement on superannuation as the case may be, and

(b) whether, or not the said period shall be treated as a period spent on duty.

(2) Where the authority mentioned in sub-rule (1) is of opinion that the Government employee has been fully exonerated or, in case of suspension, that it was wholly unjustified, the Government employee shall be given the full pay and allowances to which he would have been entitled, has he not been dismissed, removed, compulsorily retired or suspended, as the case may be.

xxx xxx xxx

In terms of sub Rule (1), an order is required to be passed regarding payment of pay & allowances for the period of absence and whether such period shall be treated as duty period. Sub Rule (2) contemplates where a Government employee has been ordered to be reinstated on being fully exonerated and that suspension was wholly unjustified, such employee shall be paid pay and allowances to which he is entitled had he not been compulsorily retired.

In B.D. Gupta Vs. State of Haryana, , the Supreme Court considered a case where the punishment of censure was passed against the appellant. On the same day another order was passed that he shall not be allowed anything more than what had already been paid to him as subsistence allowance. The Supreme Court held that the authority concerned has to form an opinion as to whether the Government servant has been fully exonerated and also in case of suspension the order of suspension was wholly unjustified. It was held that the justice and fair-play demands that the Government should have given the appellant the reasonable opportunity, to show cause why an order affecting his pay and emoluments to his prejudice should not be made. The Court held to the following effect:-

It is clear that before passing an order under Rule 7.3 the authority concerned has to form an opinion as to whether the Government servant has been fully exonerated and, also, whether, in the case of suspension, the order of suspension was wholly unjustified.

14......... It was contended on behalf of the Government that the order regarding allowances was a mere consequential order and in passing such an order it was not necessary to give a hearing to the party affected by the order. This Court, however, held that an order passed under Fundamental Rule 54 is not always a consequential order of a mere continuation of the departmental proceeding taken against the employee. Since consideration under Fundamental Rule 54 depends on facts and circumstances in their entirety and since the order may result in pecuniary loss to the Government servant, consideration under the Rule "must be held to be an objective rather than a subjective function". Shelat, J., who delivered the judgment of the Court went on to observe: "The very nature of the function implies the duty to act judicially. In such a case if an opportunity to show cause against the action proposed is not-afforded, as admittedly it was not done in the present case, the order is liable to be struck-down as invalid on the ground that it is one in breach of the principles of natural justice".

We have no doubt in our minds that in this case also justice and fair play demand that the Government should have given the appellant a reasonable opportunity to show cause why an order affecting his pay and emoluments to his prejudice should not be made.

The suspension of the petitioner was revoked w.e.f. 24.01.2003, the date on which, the services of the petitioner were recommended for compulsory retirement. The disciplinary proceedings had not proceeded from the stage of issuance of charge-sheet. Thus, there is no order of punishment. The order dated 24.05.2003 that the period of suspension shall not be treated to have been spent on duty is without providing any opportunity of hearing. Consequently, the communication dated 24.05.2003 (Annexure P-3) is set aside. The respondents are directed to pay the pay and allowances for the suspension period i.e. from 16.05.2000 to 23.01.2003 and also recalculate the pensionary benefits, within period of six months.

The present writ petition is disposed of accordingly.