Shankar Prasad Gupta vs State of MP and Another

Challenging the order-dated 20.4.2005 - Annexure P/1, by which petitioner has been compulsorily retired under the provisions of Rule 42(1)(b) of the MP Civil Services (Pension) Rules, 1976 read with the provisions of Fundamental Rule 56(2-A), petitioner has filed this writ petition.

Petitioner was appointed as a Civil Judge Class II on 16.10.1985. He was promoted as Civil Judge Class I on 26.7.1992 and thereafter as Chief Judicial Magistrate (hereinafter referred to as "CJM'') on 6.6.1997. Subsequently, in the year 1999, he was reverted from the post of CJM to the post of ACJM. In the meanwhile, certain adverse entries were communicated to him for the year 1997-98 vide communication Annexure R/7 dated 30.6.1998. His representation against the aforesaid communication was rejected vide Annexure R/8 on 23.1.1999. Thereafter, in the next year 1998-99 also, he was given an advisory remark and his grading was rated as ''average'', as is evident from Annexure R/9 dated 13.4.1999. Subsequently, his representation against this was also rejected vide Annexure R/10, on 13.10.1999. However, on 16.1.2002, he was again promoted as CJM. While working as CJM again for the year 2001, certain advisory remarks were communicated to him vide Annexure R/12. However, on 9.5.2003 he was promoted to the post of Additional District Judge (HJS) and was posted in Nowgaon, District Chhatarpur, in the newly opened Court. A complaint was received against the petitioner with regard to a pilgrimage undertaken by the petitioner between 4.6.2004 to 13.6.2004, while being posted as ADJ. It was indicated in the complaint that petitioner accompanied by one Shri Anil Saxena, Advocate, Government Pleader of District Gohad, District Bhind and another Advocate Shri K.C. Upadhyaya undertook the pilgrimage in a Tempo Trax Vehicle alongwith his family members and the expenses for the same was mainly borne by the Advocates. It was pointed out that after coming back the petitioner had passed certain orders in criminal cases to the advantage of these Advocates and, therefore, the complaint was looked into and on the basis of a report submitted by the District Judge (Vigilance), a prima facie case being made out, a charge-sheet was issued to the petitioner. In this regard, the note-sheet of the District Judge (Vigilance) is Annexure R/15 dated 6.1.2005; approval of the Hon''ble Chief Justice is Annexure R/15 dated 8.1.2005; the report of the Administrative Committee No.1 proposing to initiate Departmental Inquiry is Annexure R/16 dated 7.3.2005. While the Departmental Inquiry was pending, advisory remarks were again communicated to the petitioner for the year ending 2004 on 8.4.2005 vide Annexure P/3 and P/4.

In the meanwhile, as the petitioner had completed 20 years of service, his case came up for scrutiny with regard to his continuation in service after completing 20 years as required under Rule 42(1)(B) of the MP Civil Services (Pension) Rules, 1965 and while scrutinizing the case of the petitioner, it was found that the over all performance of the petitioner was not ''good'', he was only an ''average'' worker and taking note of the totality of the circumstances the Administrative Committee No.1 recommended for compulsory retirement of the petitioner. The recommendations of the Administrative Committee was accepted by the Full Court in its meeting held on 16.4.2005 vide Annexure R/22, and based on the same the State Government has passed the impugned order - Annexure P/1.

Shri N.K. Salunke, learned counsel for the petitioner, placing reliance on the judgment rendered by the Supreme Court in the case of State of Gujarat Vs. Umedbhai M. Patel, , submitted that promotion was granted to the petitioner on the post of ADJ just two years prior to his compulsory retirement and the fact that a charge-sheet was issued to him and without conducting an inquiry into the charge-sheet the impugned action was taken, and emphasizing that the entire action against the petitioner is taken only to punish him for the allegations levelled in the charge-sheet, which was issued to him, this was a short-cut method adopted by the respondents to somehow remove the petitioner from service without conducting a Departmental Inquiry. Accordingly, it is argued that when a charge-sheet was issued to the petitioner and when there were serious allegations against the petitioner, an inquiry should have been conducted and the action to compulsorily retire the petitioner on the aforesaid allegation is nothing but an act of punishment without conducting Departmental Inquiry. That apart, it was emphasized by him that when the petitioner was promoted as ADJ in 2003 i.e... on 9.5.2003, after considering his over-all service record, then his compulsory retirement within a period of two years thereafter is illegal as the petitioner cannot be treated as dead wood on 13.4.2005. Accordingly, emphasizing that the entire action is contrary to the principles governing compulsory retirement, learned counsel for the petitioner seeks for interference into the matter.

Refuting the aforesaid Smt. Shobha Menon, learned Senior Advocate appearing for respondent No.2, took us through the entire service record of the petitioner and argued that the petitioner was an ''average'' worker and throughout his career adverse entries were communicated to him. The adverse entries communicated were with regard to his working and the manner in which the cases were disposed by him, certain complaints with regard to integrity of the petitioner and considering the over-all situation, it is stated that the High Court took a decision to compulsorily retire the petitioner after evaluating his entire service record. Learned Senior Advocate then emphasized that in the case of a judicial officer even if there is an isolated adverse entry in the career with regard to his integrity, the same is sufficient to take action for compulsorily retiring him in public interest. It is stated that in the absence of any malafide or arbitrariness being brought to the notice of this Court, in the light of the law laid down in the case of Pyare Mohan Lal Vs. State of Jharkhand and Others, , the action taken on the basis of an isolated case of doubtful integrity is upheld by the Supreme Court. It is stated in the present case that there was serious doubt with regard to integrity of the petitioner and thereafter the decision to compulsorily retire him was taken after considering the over-all service performance of the petitioner, which included the fact with regard to reversion of the petitioner on one occasion from the post of CJM to the post of ACJM; and, his case for promotion initially to the post of CJM and subsequently to the post of ADJ being deferred on two occasions, it is a case where the over-all service performance of the employee is treated to be ''average'' and the High Court took a decision in the interest of administration and in doing so, it is stated that no error is committed.

Learned Senior Advocate further submitted that merely because a charge-sheet was issued to the petitioner and the Departmental Inquiry was pending, that by itself is not a ground for holding that the petitioner is being punished. It is emphasized that compulsory retirement under Rule 42 of the Pension Rules read with Fundamental Rule 56 is not punishment and, therefore, the arguments advanced by learned counsel for the petitioner is not tenable. Accordingly, it is the case of the respondents that in the facts and circumstances of the case, no interference is called for.

We have heard learned counsel for the parties and perused the records.

On a perusal of the records, it is clear that the over-all service performance of the petitioner has been rated as ''average''. After his appointment in the year 1985, even though he was promoted on the post of CJM on 6.6.1997, but considering the fact that his services were not satisfactory he was reverted in the year 1999 from the post of CJM to the post of ACJM; an adverse remark was communicated to him for the year ending 30.6.1998 i.e... immediately after he was confirmed on completion of probation; and, an adverse entry is Annexure R/1 and it pertains to his work and supervising the work of his staff members. Thereafter, for the year ending March 1994, the District Judge after evaluating his judgments and the manner of his working came to the conclusion that his judgments and decision are not supported by logical conclusion and it was indicated that he should concentrate more on the judicial work. If the documents filed by the respondents'' alongwith the return and various communications available on record are perused, it would be seen that petitioner had been an ''average'' worker. He has received below average gradings for the year 1998, average gradings for the year 1999 and subsequently also he is generally rated average in most of the gradings issued to him alongwith various adverse entries as are indicated in the record. The adverse entries pertains to his work and remarks with regard to improvements to be done, slow rate of disposal so also the manner in which bail applications and application u/s 482 CrPC are decided by him. Finally, even though he was promoted to the post of ADJ, a complaint with regard to his integrity was received and on the same a preliminary inquiry was conducted, the same was found to be correct and a Departmental Inquiry was initiated.

If the entire service record of the petitioner is scrutinized, it would be seen that in the year 1987, an adverse entry was indicated to him vide Annexure R/1, on 14.1.1988, pertaining to inspection of work and irregularity committed in supervising the work of the Staff. For the period 1989-90, petitioner was again graded as ''Average'' i.e.... ''D''. Even though he received good gradings for the next three years between 1990-93, but an adverse remark was indicated to him vide Annexure R/2, for the year 1993-94, wherein it was indicated that his judgments and conclusions are not supported by sound logic and he was cautioned to be more careful, concentrate and provide guidance to the staff. Again, for the year 1993, the representation against this was also rejected vide Annexure R/3. For the year 1994 again certain allegations were levelled against the petitioner and the same were communicated to him by way of adverse remarks i.e... Annexure R/4. This pertains to action taken in the matter of deciding certain criminal cases, there were allegations of extra-ordinary delay by the petitioner and it was found that the petitioner was not conducting the procedure properly. Thereafter, in the year 1995 also, complaints were received against the petitioner from one Shri Sunder Prasad of Bhander, District Gwalior when the petitioner was posted as Civil Judge Class II, at Gwalior and the petitioner was cautioned to be careful in view of the said complaint, which related to maintenance of relations with certain litigants and the facts which were found with regard to his activities in discharge of his judicial duty. Petitioner was directed to be cautious again for the year ending 1995, adverse remarks were communicated to the petitioner and his grading was ''average''. For the year ending 1997-98, he was graded ''below average'' and the same was indicated to him vide Annexure R/7 on 30.6.98 and his representation was rejected vide Annexure R/8 by the High Court on 23.1.1999. Again, in the year 1998-99, he was graded as ''D'' (Average) and his representation rejected vide Annexure R/10 on 13.10.1999. For the years 1999-2000, he was again graded as ''D''. For the year 2000-2001 also, he was communicated adverse CR vide Annexure R/12. For the year 2004 also, adverse communications were made to him vide Annexure R/13, advisory was issued and his grading was ''Average''. The entire service profile of the petitioner shows that it was not so extra-ordinary that he could be termed as a ''Good Judicial Officer''. In the adverse entry made by the Portfolio Judge for the year ending 31.12.2004, it was indicated that his integrity is doubtful and there are question-marks with regard to his character and reputation.

Be it as it may be, it is a case where the over-all service performance of the petitioner is rated as ''average'' and finally, when a complaint is received against him with regard to his integrity, the impugned action is taken. The question is as to whether the action of the High Court in compulsorily retiring the petitioner without conducting an inquiry under such circumstances is justified or not?

It is not a case where the petitioner is punished by way of compulsory retirement for an isolated instance of travelling to Badrinath between 4.6.2004 to 13.6.2004. While the question with regard to this incident was pending the petitioner completed 20 years of service and as required under the statutory provisions i.e... Rule 42(1) of the MP Civil Services (Pension) Rules, his case had to be placed and considered for confirmation for retaining him in service after 20 years. When the said exercise was undertaken and when his over-all service record was evaluated, it was found that right from the beginning he was an ''average worker'', his disposal was not upto the mark, the quality of judgments were not as ''good'' as it should been, and his over-all performance has been rated as ''average''. Added to that, there were certain complaints with regard to his integrity and finally in the year 2004 a serious complaint was received against him and there were material to show in the preliminary inquiry that there was some substance in this complaint. Taking note of all these circumstances, if a decision is taken to compulsorily retire the petitioner, we are of the considered view that the same would not amount to an act of punishment nor can it be termed as illegal or unjustified in any manner whatsoever.

As far as reliance placed by the petitioner with regard to the principle laid down in Umedbhai M. Patel (supra) is concerned, the same cannot be made applicable for the simple reason that for an adverse entry in the matter of a judicial officer that also with regard to his integrity, considerations have to be different and the same is laid down by the Supreme Court in the case of Pyare Mohan Lal (supra).

If the principle laid down by the Supreme Court in the aforesaid case is followed, it would be seen that in the said case also the judicial officer was an ''average worker'' and as there was one isolated entry with regard to his integrity, the same formed the basis for his compulsory retirement and the action of the High Court was upheld by the Supreme Court and the following observations were made by the Supreme Court, in this regard in paragraph 29, as under:

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 different 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 malafide."

(Emphasis supplied)

If the case of the petitioner is evaluated in the backdrop of this principle, it would be seen that apart from the fact that petitioner is also rated as an ''average worker'', there are adverse communications to him throughout his service record, he has been reverted on one occasion and on two occasions his promotions were deferred because of certain adverse material against him. Finally, there was complaint with regard to integrity and taking note of all these factors, if the High Court took a decision to compulsorily retire the petitioner, we see no error in the same warranting interference. It is a case where a judicial officer, holding the post of ADJ, is compulsorily retired on the basis of his entire service record and in the absence of any malafide or arbitrariness being established from the material available on record, it is not a fit case where interference is warranted in these proceedings.

Accordingly, finding no ground to interfere into the matter on the grounds raised, the petition is dismissed.