A judicial officer challenged compulsory retirement under FR.56(2). The Court upheld retirement in public interest for continuous poor performance, held that it was not punishment and required no further enquiry, and dismissed the writ petition without costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.06.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE C.SARAVANAN
W.P.No.29555 of 2007
G.Rahmatulla .. Petitioner
Vs.
1. The Registrar General,
High Court,
Chennai-600 108.
2. The State of Tamil Nadu,
Rep. by the Chief Secretary to Government,
Public (Special-A) Department,
Secretariat,
Chennai-600 009.
.. Respondents
Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus to call for the entire records in pursuant to G.O.Ms.No.1168, dated 12.10.2006 on the file of the second respondent and consequential proceedings in R.O.C.No.92/2004-Con.B1 in Notification No.206/2006, dated 30.10.2006 on the file of the first respondent and consequential orders in G.O.(2D).No.84, dated 11.04.2007 passed by the second respondent rejecting the Review Petition of the petitioner and quash the same and direct the respondents to reinstate the petitioner in service with all consequential and attendant benefits and allow the Writ Petition.
For petitioner : Mr.A.K.Kumarasamy, Senior Counsel for M/s.K.Govi Ganesan
For respondents: Mr.M.Santhanaraman for R-1 Mr.K.S.Suresh, Govt. Advocate for R-2
ORDER
(The Order of the Court was made by R.Subbiah,J)
The petitioner has come forward with the present Writ Petition praying for issuance of a Writ of Certiorarified Mandamus to call for the entire records pursuant to G.O.Ms.No.1168, dated 12.10.2006 on the file of the second respondent and consequential proceedings in R.O.C.No.92/2004-Con.B1 in Notification No.206/2006, dated 30.10.2006 on the file of the first respondent and consequential orders in G.O.(2D).No.84, dated 11.04.2007 passed by the second respondent rejecting the Review Petition of the petitioner and quash the same and direct the respondents to reinstate the petitioner in service with all consequential and attendant benefits and allow the Writ Petition.
(a) The petitioner entered into the Tamil Nadu Judicial Service on 04.11.1988 and was posted as Additional District Munsif, Kulithurai, Kanyakumari District. During June 1992, he was transferred and posted as Judicial Magistrate, Bhavani, Erode District and worked in that post till 31.05.1995. Subsequently, he was transferred and posted as Judicial Magistrate, Paramathi, Salem District and worked as such in that post till 28.11.1995. In the year 1995, he was promoted as Subordinate Judge and posted as Subordinate Judge in Sub-Court, Ooty, Nilgiris District and worked in that post from 01.12.1995 to 05.08.1998. Thereafter, he was transferred as Sub-Judge, Padmanabhapuram, Kanyakumari District and he served there till 23.12.1999. Subsequently, he was transferred and posted as Principal Subordinate Judge, Nagercoil on 23.12.1999 and he worked there till 25.01.2000. Thereafter, he was transferred and posted as Additional Subordinate Judge, Dindigul and then as Principal Subordinate Judge, Dindigul and worked there from 02.02.2000 to 21.11.2001. He was promoted as Additional District Judge on ad-hoc basis and posted as Judge of the Fast Track Court No.1, Tirunelveli and worked in that post from 24.11.2001 to 30.04.2005. Thereafter, he was transferred to Dharapuram, Erode District as Additional District Judge, Fast Track Court No.3, Dharapuram and worked in that post from 02.05.2005 to 01.11.2006 FN. When he was serving in that post, he was compulsorily retired from service by the impugned order passed by the second respondent.
(b) It is the further case of the petitioner that while he was serving as Sub-Judge, Padmanabhapuram, some adverse remarks were made in his Annual Confidential Report (for short, 'ACR') for the period from 12.08.1998 to 31.12.1998 under the following heading:
"(3) Promptitude in disposal of cases: (a) Current : (b) Old :
(4)(a)Industry
(b) Aptitude for hard/heavy work
(c) Readiness to take up responsibility
:"
vide Official Memorandum, dated 06.10.1999. In response to the said Official Memorandum, the petitioner submitted his representation dated 09.11.1999 praying for review of the said adverse remarks. This Court, vide Official Memorandum in R.O.C.No.4/99-Con.B2, dated 31.12.1999 had accepted his explanation, dated 09.11.1999 and expunged the remarks made against the petitioner for the period from 12.08.1998 to 31.12.1998. In the said Memorandum, the petitioner was instructed not to invite such remarks in future. Further, this Court has issued an Official Memorandum in R.O.C.No.4/98-Con.B2, dated 31.12.1999, communicating the remarks made in his ACR while he was serving as Sub-Judge, Ooty for the period from 01.01.1998 to 04.08.1998 and in this Official Memorandum, it is stated that the petitioner had given lot of scope for several and frequent complaints and representations from the Bar and litigants and that the petitioner should do well to improve himself. In response to the said Official Memorandum, the petitioner had submitted his representation, dated 14.02.2000 praying for expunging the said remarks. The Registry of this Court, vide Official Memorandum in R.O.C.No.1/2000-Con.B2, dated 31.01.2001, had informed about the factum of rejection of his representation by drawing his attention only to the effect that there were frequent complaints and that the petitioner should not give room for any such complaints in future and that the remarks made against him for the relevant period, are advisory in nature.
(c) While so, it is the grievance of the petitioner that in normal course, the petitioner would have been considered for promotion to the post of District Judge during January 2001. However, he was overlooked and his juniors were promoted and he was not communicated of the reasons for overlooking him. Thereafter, the petitioner made a representation dated 23.03.2001 through proper channel to the Registrar General of this Court. However, the petitioner was promoted on ad-hoc basis as Additional
District Judge, Fast Track Court No.1, Tirunelveli, during November 2001. Further, the Registrar (Management) of this Court had issued an Official Memorandum in R.O.C.No.3795/2003/B5/FTC, dated 10.07.2003, calling upon the petitioner to submit his explanation for not reaching the norms for 11 months from January 2002 to April 2003 while he was serving as Additional District Judge/Fast Track Judge No.1, Tirunelveli. In response to the said Official Memorandum, the petitioner had submitted his explanation, dated 21.10.2003. In his representation, the petitioner submitted that he had disposed of 56 Sessions cases, 98 Criminal Appeals, 90 MCOPs., 15 CMAs and 11 LAOPs after full trial during the year 2002 and between July 2002 and September 2002, the Advocates were boycotting the Courts regarding the amendments proposed in the Civil Procedure Code (CPC). During the above period when he was working as Additional District Judge/Fast Track Judge No.1, he had availed 9 days of Medical Leave and 4 days of Casual Leave in December 2002 and 12 days of Earned Leave on Private Affairs in February 2003.
(d) The adverse remarks made in the ACR pertaining to the periods from 01.01.1998 to 04.08.1998 and 12.08.1998 to 31.12.1998 were reported as advisory in nature and they were later expunged and only thereafter, he was promoted as Additional District Judge/Fast Track Judge on ad-hoc basis during November 2001. Therefore, according to the petitioner, the abovesaid remarks may not form the basis to retire him compulsorily in public interest. The Registrar General of this Court had issued a Notification, vide No.206/2006 in R.O.C.No.92/2004-Con.B1, dated 30.10.2006 stating that consequent upon the impugned G.O., dated 12.10.2006, compulsorily retiring him, the petitioner was relieved from the Tamil Nadu State Judicial Service with effect from the date of service of the said G.O. and the Government letters on him, a cheque dated 26.10.2006 for a sum of Rs.1,10,343/- was drawn in favour of the petitioner, being the three months' pay and allowances, in lieu of 3 months' notice to the petitioner.
(e) The petitioner thereafter submitted a Review Petition, dated 27.11.2006 to the Government/second respondent, and the second respondent, after getting remarks from the Registrar General of this Court, had rejected the said Review Petition, vide G.O.(2D).No.84, dated 11.04.2007, without properly considering the said Review Petition.
(f) It is also stated by the petitioner that a perusal of G.O.Ms.No.1168, dated 12.10.2006 passed by the second respondent, would show that the Administrative Committee of this Court, after considering the ACR, work done statement and all other relevant records including the latest
Vigilance Reports relating to the petitioner and all other relevant aspects of the matter, resolved that it is just and necessary to retire the petitioner compulsorily from service under the Tami Nadu Fundamental Rules (for short, 'FR') in F.R.56(2) on attaining the age of 50 years, as his continuance in service is against public interest. Accordingly, the petitioner was retired compulsorily, since he completed the age of 50 years on 11.06.2005 A.N. The second respondent subsequently sent a letter in No.2114/Special.A/2006/1, dated 26.10.2006 to the Registrar General of this Court, with a copy marked to the petitioner, substituting para No.3 in G.O.Ms.No.1168/Special.A Department, dated 12.10.2006. Hence, challenging the said G.O., dated 12.10.2006 and the consequential orders, the petitioner has filed the present Writ Petition for the relief stated supra.
"3. We have gone through the entire service record of the petitioner as well as the minutes of the Meeting of the Administrative Committee, confidential reports, work done statements and other relevant records including the vigilance reports pertaining to the writ petitioner that were placed before us. Having gone through the entire materials, we are satisfied and in agreement with the views taken by the Administrative Committee to recommend the Government to order compulsorily retirement of the writ petitioner in view of his poor performance in discharge of his duties as Judicial Officer. Therefore, we do not find any reason to interfere with the impugned order.
"Though this matter was listed for early hearing, on consent of learned counsel for the parties, it is finally heard.
The present appeal by special leave assails the legal propriety of the order dated 5.7.2010 in Writ Petition No.29555/2007, whereby the Division Bench of the High Court of Judicature at Madras has declined to interfere with the order of compulsory retirement imposed on the appellant.
On a perusal of the order passed by the High Court, we find that the High Court has not specifically dealt with the issues raised by the appellant, but has recorded that it was satisfied and in agreement with the views taken by the administrative committee.
In our considered opinion, the said analysis is neither just nor proper. The Court can only record its satisfaction after analysing the confidential reports and other relevant records. Merely saying that it has perused, is not enough. The impugned order must reflect application of mind, analysis of documents and ascription of reasons. The aforesaid elements being absent, we are compelled to set aside the order and remand the matter back to the High Court with a further request that it shall dispose of the writ petition within a period of three months hence. Liberty is granted to the appellant to produce a copy of this order before the High Court, so that adequate steps could be taken for listing and disposal of the case.
Resultantly, the appeal is allowed to the extent indicated above. I.A.No.5695/2018 and other pending interlocutory applications stand disposed of. There shall be no order as to costs."
Accordingly, this Writ Petition is again now taken up for disposal, in view of the matter being remanded by the Supreme Court as extracted supra.
Government employee compulsorily from service, has to consider the entire record of the Government servant, including the latest report. In the instant case, by considering the entire records and latest report, the impugned order has been passed. In support of his submissions, the learned Standing Counsel appearing for the first respondent/Registrar General of this Court relied on a decision of the Supreme Court reported in 2010 (10) SCC 693 = MANU/SC/0696/2010 (Pyare Mohan Lal Vs. State of Jharkhand and others) and prayed for dismissal of the Writ Petition.
" FR.56(2): Compulsory Retirement: Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months' pay and allowances in lieu of such notice at any time after he has attained the age of fifty years or fifty-five years in the case of Basic Servants, as the case may be, or after he has completed thirty years of qualifying service."
statements in respect of the petitioner, for the relevant period, as follows: "01.01.1998 to 04.08.1998:
"This officer had given lot of scope for several and frequent complaints, representations from the Bar, litigants and unanimous Resolutions by the Bar to transfer him. He should do well to improve himself." Sd/ KPSJ/23.06.1999
12.08.1998 to 31.12.1998 3) Promptitude in disposal of cases: (a) Current | (b) Old | "wanting" 4) (a) Industry | (b) Aptitude for hard/heavy work | "Apparently | lacking" (c) Readiness to take up | responsibility | Sd/- KSJ / 03.06.1999 01-04-1999 to 23-12-1999 "District Judge's remarks noted." Sd/- KSJ dated: 29-07-2000. Remarks of District Judge Overall view – "Satisfactory." Sd/- KSJ dated 29-07-2000. "Seen" Sd/- NKJJ as ACJ dated 01-08-2000. 02-02-2000 to 31-12-2000 "Satisfactory. No adverse report received" Sd/- KGJ dated 26-10-2001. "I agree" Sd/- C.J. dated 30-10-2001. 01-01-2001 to 21-11-2001 "Satisfactory" Sd/- KGJ dated 28-12-2002. Sd/- C.J. 01-01-2002 to 31-12-2002
"Satisfactory" Sd/- PSMJ dated 14-04-2003. Sd/- C.J. 01.01.2003 to 31.12.2003 "Satisfactory" Sd/ NVBJ / 28.10.2004 01.01.2004 to 31.12.2004 "Satisfactory" Sd/ SKKJ Sd/ CJ
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---------------------------
01.01.1998 to 04.08.1998 as Sub Judge, Uthagamandalam (6 months)
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-----------------------------
Norms Work Turned out Shortfall Excess
6 O.S. |AFT O.S. - 18|
14 A.S.|per month S.C - 6| 24 12 -
A.S. - 8|
3 O.P.s eq.to - 1|
-
2 MCOP.s.eq.to - 1| 12 60
5 RCAs. eq.to - 2|
Norms: Below
=================================================
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-----------------------------
12.08.1998 to 31.12.1998 as Sub Judge, Padmanabhapuram (4 months)
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-----------------------------
Work Turned out Shortfall Excess
O.S. - 5|
S.C - 1| 6 18 -
A.S. - 30|
15 CMAs.eq.to - 5| 35 11 -
Note: i) The officer was on Unearned Leave for 17 days. ii) There was Advocate's Boycott for 3 days. ================================================= --------------------------------------------------------------------------------------------------01.01.1999 to 31.12.1999 as Sub Judge, Padmanabhapuram (10 months) --------------------------------------------------------------------------------------------------Work Turned out Shortfall Excess O.S. - 2| S.C - 2| 14 46 - 79 I.A.s eq.to - 10| A.S. - 28| 15 CMAs.eq.to - 5|35 85 - 6 MCOP.s.eq.to - 2|
Norms: Below
Note: : i) There was Advocate's Boycott for 127 days.
ii) The Officer was on Medical leave for 30 days. iii) The officer was on other duty for 24 and ½ days. =================================================
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-----------------------------
02.02.2000 to 31.12.2000 as Additional Sub Judge, Dindigul (9 months)
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-----------------------------
Norms Work Turned out Shortfall Excess
6 O.S. |AFT O.S. - 54|s
14 A.S.|per month S.C - 15| 76 - 22
52 I.A. s eq.to- 7|
A.S. 20 106 -
Norms: Excess : 22 O.S
Shortfall : 106 A.S.
=================================================
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----------------------------
01.01.2001 to 14.03.2001 as Additional Sub Judge, Dindigul (2 ½ months)
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-----------------------------
Work Turned out Shortfall Excess
O.S. - 12|
S.C - 1| 14 1 -
20 I.As. eq.to - 1|
A.S. 7 28 -
- Period short -
=================================================
15.03.2001 to 21.11.2001 as Principal Sub Judge, Dindigul (7 months)
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-----------------------------
Norms Work Turned out Shortfall
Excess
6 O.S. |AFT O.S. - 16|
12 A.S.|per month S.C - 13| 43 - 1
109 I.As. eq.to - 14|
A.S. - 51|
14 RCAs eq.to - 5| 60 24 -
13 MCOPs eq.to - 4|
Norms: Excess : 1 O.S
Shortfall : 24S A.S.
Note i) The Officer has also disposed of 6 E.Ps and 1 O.P. ii) The Officer was on Unearned Leave on Medical Certificate for 10 days. iii) There was Advocate's Boycott for 10 days.
01.01.2002 to 31.12.2002 as Additional District Judge, Fast Track Court No.I, Tirunelveli (12 months)
| Norms |
Work Turned out | Shortfall | Excess |
|---|---|---|---|
| 14 Sessions | |||
| AFT per month | S.C | - 56 | |
| 90 MCOPs eq.to | - 18 | ||
| 97 Crl.App.eq.to | - 16 | 95 73 |
|
| 15 CMAs.eq.to | - 3 | ||
| 11 LAOPs. eq.to | - 2 | ||
| Norms: Below |
Note: i) The Officer has also disposed of 5 CMPs. and 368 Crl.M.P.s ii) The Officer was on Medical Leave for 9 days. iii) There was Advocate's Boycott for 18 days.
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-----------------------------
01.01.2003 to 31.12.2003 as Additional District Judge, Fast Track Court
No.I, Tirunelveli(12 months)
-----------------------------------------------------------------------
-----------------------------
Norms Work Turned out Shortfall Excess
14 Sessions
AFT per month S.C - 60|
154 MCOPs eq.to - 31|
66 Crl.App.eq.to - 11| 119 49 -
2 Crl. R.C.s eq.to - 3|
28 CMAs.eq.to - 5|
56 LAOPs. eq.to - 9|
Norms: Below
Note:
i) The Officer has also disposed of 3 CMPs. and 21 Crl.MPs
ii) The Officer was on Earned Leave for 12 days and on other duty for
7 days
iii) There was Advocate's Boycott for 7 days.
=================================================
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-----------------------------
01.01.2004 to 31.12.2004 as Additional District Judge, Fast Track Court
No.I, Tirunelveli (12 months)
-----------------------------------------------------------------------
-----------------------------
Norms Work Turned out Shortfall Excess
14 Sessions
AFT per month S.C - 93|
OS - 4|
146 MCOPs eq.to - 29|
-
6 I.A.s..eq.to - 1| 141 27
43 Crl.App.eq.to - 7|
26 Crl.R.Cs. eq.to - 3|
9 CMAs.eq.to - 2|
12 LAOPs. eq.to - 2|
Norms: Below
Note: i) The Officer has also disposed of 14 Crl.MPs
ii) The Officer was on Earned Leave for 20 days.
iii) There was Advocate's Boycott for 41 days."
=================================================
2001 (3) SCC 314:
"11. The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus:
i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest.
(ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution.
(iii) For better administration, it is necessary to chop off dead-wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer.
(iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order.
(v) Even uncommunicated entries in the confidential record can also be taken into consideration.
(vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable.
(vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer.
(viii) Compulsory retirement shall not be imposed as a punitive measure."
2010 (10) SCC 693 = MANU/SC/0696/2010:
"COMPULSORY RETIREMENT"
"8. In Baikuntha Nath Das & Anr. Vs. Chief District Medical Officer, Baripada & Anr., MANU/SC/0193/1992 : AIR 1992 SC 1020, this Court has laid down certain criteria for the Courts, on which it can interfere with an order of compulsory retirement and they include mala fides, if the order is based on no evidence, or if the order is arbitrary in the sense that no reasonable person would form the requisite opinion on the given material, i .e. if it is found to be a perverse order. The Court held as under:(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 the 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 records/character rolls, 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."
Sd/-
Assistant Registrar(Ccc)
//True Copy//
Sub Assistant Registrar
cs
To
1. The Registrar General,
High Court,
Chennai-600 104.
2.The Chief Secretary to Government,
State of Tamil Nadu,
Public (Special-A) Department,
Secretariat,
Chennai-600 009.
+1cc to Mr. K.Govi Ganesan, Advocate SR.No. 49751
W.P.No.29555 of 2007
A.SK(30/07/2019)
2 issues framed by the court
Was the judicial officer's compulsory retirement under FR.56(2) sustainable on the service record?
Did compulsory retirement require a further enquiry or constitute a punitive measure?
Colour shows how this judgement treated each authority
State of Gujarat VS. Umedbhai M.PatelFollowed¶77
2001 (3) SCC 314 (State of Gujarat VS. Umedbhai M.Patel) · Who else cites this
Pyare Mohan Lal Vs. State of Jharkhand and othersFollowed¶77
2010 (10) SCC 693 = MANU/SC/0696/2010 (Pyare Mohan Lal Vs. State of Jharkhand and others) · Who else cites this
1 provisions across 1 enactments
G.Rahmatulla
The Registrar General, High Court, Chennai
The State of Tamil Nadu
R.SUBBIAH
C.SARAVANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
