Nand Kumar Verma Vs.
State of Jharkhand & Ors.
[Civil Appeal No.
1458 of 2012 Special Leave Petition (C) No. 5921 of 2007]
O R D E R
appeal is directed against the judgment and order passed by the High Court of Jharkhand
at Ranchi in Writ Petition No.2856 of 2002 and Writ Petition No.1620 of 2003
dated 11.07.2006. By the impugned judgment and order, the High Court has sustained
the order of reversion and the order of compulsory retirement passed against
the outset, we intend to observe that the Judicial Officers are part and parcel
of this institution. They should be respected and their career should be carefully
protected. But in the present case, it appears to us, after going through the records
that the appellant, who was serving as a Judicial Officer, has been treated
with scant respect by the High Court. Be that as it may.
appellant was initially appointed as Munsif (now known as Civil Judge, Junior Division)
in the Bihar Subordinate Judicial Service in the year 1975 and his services
were confirmed as Munsif in the year 1980. Subsequently, in the year 1986, he
was promoted to the rank of Sub-Judge (Civil Judge, Senior Division) and confirmed
on the same rank w.e.f. 19.01.1988. In the year 1987, the appellant was made Sub-Judge-cum-Addl.
Chief Judicial Magistrate.
Thereafter, in November
1989, he was posted as Chief Judicial Magistrate by the Patna High Court vide
Notification dated 5.11.1989. While he was working as a Chief Judicial
Magistrate at Gopalganj, an inspection was made by the portfolio Judge and on noticing
certain omissions and commissions in granting bail in certain cases by the
appellant, certain adverse remarks were made against him in the note made on
appellant had also passed an Order dated 10.2.1994 granting bail to one person accused
of offences punishable under Section 302 of the I.P.C. in Mohammadpur Police Station
case no. 90/93. This was taken as an exception by the learned District Judge
and also by the High Court while deciding the Criminal Miscellaneous Petition No.11327/1994.
The High Court of Patna vide Order dated 12.09.1994 in Cr. Misc. No. 11327 of 1994,
whilst commenting adversely against the appellant, had observed that the
appellant had granted bail in the said matter on extraneous consideration and further
directed the matter to be placed before the Hon'ble Chief Justice of the High
Court for taking necessary action.
view of the abovementioned adverse comments passed against the appellant, he
was directed to offer his explanation if any, by the High Court. In this
regard, the appellant had offered his explanation, firstly, on 7.5.1994 for strictures
passed by the Inspecting Judge and; secondly on 21.12.1994 for adverse remarks
made by the High Court dated 12.09.1994 in Cr. Misc. No. 11327 of 1994.
explanation so offered on 7.5.1994 was placed before the Standing Committee of
the High Court on 17.11.1994. In regard to this explanation, the Standing
Committee further sought explanation 3 from the appellant for using objectionable
language against the Inspecting Judge and directed him to appear before it in its
the appellant appeared on 1.12.1994 and 2.12.1994 and had promptly stated that
he was apologetic for the impertinent language used in the explanation. The Standing
Committee, after accepting the unconditional apology offered by the appellant, had
condoned his lapses and had transferred him from Gopalganj to Samastipur.
case of the appellant was also considered for promotion from Sub-Judge to the
Additional District Judge among 16 Sub-Judges by the Standing Committee in its
meeting dated 3.2.1995 and the same came to be deferred because of the pendency
of the inquiry proceedings against him.
the second explanation offered by the appellant dated 21.12.1994 he had, specifically,
adverted to the allegations made for granting bail indiscriminately even in cases
of heinous crimes. The said explanation was placed before the Standing
Committee of the High Court for its consideration in its meeting dated 5.1.1995
as an Additional Agenda which was duly accepted by the High Court. Thereafter, the
same was communicated to the appellant by the Registrar General of the High
Court vide his order dated 1.2.1995.
accepting the explanations offered, the High Court was still under the
impression that the Judicial Officer should not be left in peace. Therefore, it
appears to us, that the Standing Committee of the High Court in its meeting dated
11.08.1995 directed the initiation of the departmental proceedings against the
appellant by framing the Articles of Charges. Accordingly, the appellant was served
Articles of Charges dated 13.12.1995 containing two charges and was also asked
to show cause within one month.
Both the charges relate
to the granting of bail indiscriminately in Mohammadpur Police Station Case No.
90/93, by the appellant while he was discharging his functions as Chief Judicial
Magistrate. Pursuant to the Show Cause, the appellant had replied in detail on
16.01.1996 that his explanation on the said charges has already been accepted
by the High Court. However, the High Court through the District Judge, Samastipur
had served a notice dated 03.04.1996 to the appellant for initiating
departmental proceedings against him on the basis of Articles of Charges.
The appellant had
submitted his reply statement dated 11.06.1996 and 22.06.1996 wherein he had
specifically contended that on the same set of charges, he had already offered his
explanation on 21.12.1994 and the same was placed before the Standing Committee
consisting of Hon'ble the Chief Justice and also other learned Judges of the
High Court in its meeting dated 5.1.1995 and wherein they have accepted his
explanation. But the explanation so offered was not accepted by the Enquiry
Officer, therefore, he proceeded with the Enquiry proceedings.
recording the evidence of the witnesses and the documents produced by them, the
Enquiry Officer had submitted a report to the disciplinary authority, namely,
the High Court on 19.07.1996.In the Enquiry Report, the Enquiry Officer was of
the view that both the charges alleged against the appellant are proved beyond all
on the report of the Enquiry Officer, the disciplinary authority, viz. the High
Court, took a decision to compulsorily retire 6 appellant from service in its administrative
jurisdiction and acting on the recommendation made by the High Court, a formal notification
dated 20.04.1998 came to be issued by the personnel department, Government of
Bihar, reverting the appellant from the rank of Sub-Judge (Civil Judge, Senior
Division) to the lower post of Munsif (Civil Judge, Junior Division).
by the said order, the appellant had approached this Court in Writ Petition (S)
No.547 of 1999 under Article 32 of the Constitution of India.
Court, while admitting the petition, had issued notices to the respondents
this stage, one more factor which requires to be noticed by us is that during
pendency of the said Writ Petition, in the month of May, 2001, due to bifurcation
of the State of Bihar, the appellant was allotted to the State of Jharkhand and
was posted as Judicial Magistrate (First Class) at Koderma vide Order dated
21.04.2001. Accordingly, the appellant had joined his services under new regime
on 5.5.2001. While working as Judicial Magistrate, on the recommendation made
by the Full Court of Jharkhand High Court, the State Government has issued notification
dated 17.07.2001 compulsorily retiring appellant from service. The said order was
served on the appellant on 26.7.2001. This decision was taken by the High Court
on the basis of appellant's Annual Character Roll/Annual Confidential Report (hereinafter
referred to as "the A.C.R.") pertaining to past service which
includes the A.C.R.'s of the selective period of the service.
by the aforesaid order of compulsory retirement from service, the appellant had
approached this Court in Writ Petition No.5 of 2002. This Court, however, dismissed
the W.P. No. 5 of 2002 vide Order dated 18.01.2002 with liberty to avail
alternative remedy under Article 226 of the Constitution of India. Accordingly,
the appellant filed a Writ Petition no. 2856 of 2002 under Article 226 before
the Jharkhand High Court.
respondents herein had brought to the notice of this Court in Writ Petition (C)
No.547 of 1999 that the appellant had retired from service and therefore, this Court
transferred the pending proceedings in W.P.(C) NO.547/1999 to the Jharkhand
High Court for its consideration and decision. On transfer, the same was registered
as W.P. No. (S) 1620 of 2003 before the High Court.
the impugned judgment, the High Court has rejected both the writ petitions filed
by the appellant. That is how the appellant is before us in this Civil Appeal.
counsel for the appellant submitted that the order of reversion, whereby the appellant
was reverted from the post of Chief Judicial Magistrate to that of Munsif (Civil
Judge, Junior Division) is smacked with arbitrariness and contrary to the norms
of service law jurisprudence and therefore, is bad in law. While elaborating
his submission, the learned counsel would contend that the High Court, having
accepted his explanation to the Show Cause Notice issued to explain the notings
made by the Inspecting Judge in Criminal Miscellaneous Petition No.10327 of 1994,
could not have initiated departmental proceedings against the appellant. This, the
learned counsel would contend, would amount to double jeopardy.[[
contra, learned counsel for the respondents would submit that the explanation
was accepted by the Standing Committee only with regard to the impertinent language
used by the appellant and not with regard to the allegations of granting of
bail/provisional bail to the accused persons even in heinous crimes. Therefore,
he submits that the High Court was justified in initiating departmental inquiry
proceedings against the appellant for the charges alleged in the charge memo.
counsel for the appellant, insofar as his compulsory retirement from service is
concerned, submits that the adverse remarks that were taken into consideration
by the High Court while terminating the services of the appellant, were never
communicated to him and secondly, he would submit that the High Court was selective
in taking into consideration the ACR's of the appellant from the date of his
entry into service till the date of his retirement. He further submits that the
High Court, while recording the entries made in the ACR's in the impugned judgment,
has not made the correct reflection of the actual contents of the ACR's which
are in the records. In support of that contention, the learned counsel has invited
our attention to the additional affidavit filed before the High Court as well
in these proceedings.
reply to the submissions made by the learned counsel for the appellant, the
learned counsel for the High Court submits that in the Writ Petition, filed by the
appellant, he had not specifically contended that the adverse remarks which were
entered in the ACR's were not communicated to him. Even otherwise, learned counsel
would contend that the entire service profile of the appellant while in service
was not above board and therefore, the High Court was justified in recommending
the case of the appellant to the State Government for compulsory retirement
issues that would fall for our consideration and decision in this appeal are: Whether
the High Court was justified in passing the order dated 21.4.1998 in reverting the
appellant from the post of Chief Judicial Magistrate to the rank of Munsif
(Civil Judge, Junior Division); and Whether the High Court was justified in
passing the order of compulsorily retiring the appellant from service in public
answer the first issue, we may have to notice the observations made by the learned
Inspecting Judge in Criminal Miscellaneous Petition No.11327 of 1994. The same
is extracted :- "In the present case, as stated above, the grant of bail
by the Chief Judicial Magistrate itself was against the statutory provision contained
in section 437 of the Code as the materials on the record clearly show that there
was reasonable ground for believing that the petitioner has been guilty of an
offence punishable with death or imprisonment for life. The grant of bail itself
was not permissible in law and virtually the Chief Judicial Magistrate has surrendered
his judicial discretion to some other consideration.
pursuance to certain directions issued in the aforesaid Criminal Miscellaneous Petition,
the High Court had called for the explanation from the appellant. Pursuant to
the direction so issued, the appellant had offered his explanation. The
Standing Committee of the High Court had directed the appellant to appear before
it. Before the Standing Committee, the appellant had expressed his unconditional
apology and the same was accepted by the Standing Committee and the Standing
Committee had observed in its noting that the case has been closed against the
appellant and the same was informed to the appellant also.
yet another explanation, the appellant had justified his action in granting
bail. This explanation offered by him was also accepted by the High Court and
the same was communicated to the appellant by the Registrar General of the High
Court in which specific reference is made to the explanation offered by the appellant
in his reply dated 21.12.1994.
accepting his explanation, the High Court was still of the view that disciplinary
proceedings requires to be initiated against the appellant for his alleged
omission and commission of granting bail indiscriminately even in heinous crimes.
The Charge Memo was replied by the appellant and in that he had, specifically,
contended that the Standing Committee of the High Court, after accepting the explanation,
had informed him that his explanation is accepted and all the allegations made
against him are closed.
This aspect of the matter,
though noticed by the Inquiry Officer, he does not give any finding. He,
however, has observed that the charges alleged against the appellant are
proved. Based on this, the High Court has passed the order of reversion whereby
the appellant was reverted from the post of Chief Judicial Magistrate to that
of Munsif and the same was notified by the State Government also. In our opinion,
having accepted the explanations and having communicated the same to the appellant,
the High Court could not have proceeded to pass the order of initiating departmental
proceedings and reverting the appellant from the post of Chief Judicial
Magistrate to the post of Munsif.
On General Principles,
there can be only one enquiry in respect of a charge for a particular
misconduct and that is also what the rules usually provide. If, for some technical
or other good ground, procedural or otherwise, the first enquiry or punishment
or exoneration is found bad in law, there is no principle that a second enquiry
cannot be initiated. Therefore, when a completed enquiry proceedings is set
aside by a competent forum on a technical or on the ground of procedural infirmity,
fresh proceedings on the same charges is permissible. In the present case, a charge
memo was issued and served on the appellant.
A reading of the
charge memo does not contain any reference to the proceedings of the Standing Committee
at all. It is also not found as to whether the earlier proceedings has been revived
in accordance with the procedure prescribed.
In fact, after
receipt of the charge memo, the appellant, in his reply statement, had brought to
the notice of the enquiry officer that on the same set of charges, a notice had
been issued earlier and after receipt of his explanation dated 21.12.1994, the Standing
Committee, after accepting his explanation had dropped the entire proceedings
and the same had been communicated to him by the Registrar General of the High Court
by his letter dated 02.02.1995. In spite of his explanation in the reply
statement filed, the enquiry officer has proceeded with the enquiry proceedings
and after completion of the same, has submitted his report which has been accepted
by the disciplinary authority.
Therefore, in these circumstances,
there is no justification for conducting a second enquiry on the very charges, which
have been dropped earlier. Even through the principles of double jeopardy is
not applicable, the law permits only disciplinary proceedings and not harassment.
Allowing such practice is not in the interest of public service. In the circumstance,
we cannot sustain the impugned order reverting the appellant to the lower post.
now proceed to consider the second order passed by the High Court for recommending
the case of the appellant to the State Government to accept and issue appropriate
notification to compulsorily retire the appellant from Judicial Service. It is now
well settled that the object of compulsory retirement from service is to weed
out the dead wood in order to maintain a high standard of efficiency and
honesty and to keep the judicial service unpolluted.
Keeping this object
in view, the contention of the appellant has to be appreciated on the basis of the
settled law on the subject of Compulsory retirement. In Baikuntha Nath Das v. Chief
District Medical Officer, (1992) 2 SCC 299, three Judge Bench of this Court has
laid down the principles regarding the Order of Compulsory retirement in public
interest : 34. The following principles emerge from the above discussion:
order of compulsory retirement is not a punishment. It implies no stigma nor
any suggestion of misbehaviour.
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.
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 16 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.
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.
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
That circumstance by itself
cannot be a basis for interference. Interference is permissible only on the grounds
mentioned in (iii) above. This aspect has been discussed in paras 30 to 32
Madan Mohan Choudhary v. State of Bihar, (1999) 3 SCC 396, this Court was considering
the order of compulsory retirement of the appellant, who was a Member of the
Superior Judicial Service in the State of Bihar. On a writ petition filed by
the appellant in the 17High Court, challenging his order of compulsory
retirement by the Full Court of the High Court, the High Court on the judicial side
refused to interfere and dismissed the petition. The appellant came in appeal
before this Court.
This Court found that
while on various earlier occasions remarks were given by the High Court but
there were no entries in the character roll of the appellant for the years 1991-92,
1992-93 and 1993-94. The entries for these years were recorded at one time simultaneously
and the appellant was categorized as `C' Grade officer. The date on which these
entries were made was not indicated either in the original record or in the counter-affidavit
filed by the respondent. These were communicated to the appellant on 29-11-1996
and were considered by the Full Court on 30-11-1996.
It was clear that
these entries were recorded at a stage when the Standing Committee had already made
up its mind to compulsorily retire the appellant from service as it had directed
the office on 6-11-1996 to put up a note for compulsory retirement of the
appellant. This Court held that it was a case where there was no material on
the basis of which an opinion could have been reasonably formed that it would be
in the public interest to retire the appellant from service prematurely. This
Court was of the opinion that the entries recorded "at one go" for three
years, namely, 1991-92, 1992-93 and 1993-94 could hardly have been taken into consideration.
The Court then referred
to its earlier decision in Registrar, High Court of Madras v. R. Rajiah, (1988)
3 SCC 211, where this Court said that the High Court in its administrative
jurisdiction has the power to recommend compulsory retirement of the Member of
the judicial service in accordance with the rules framed in that regard but it
cannot act arbitrarily and there has to be material to come to a decision to
compulsorily retire the officer.
In that case it was also
pointed out that the High Court while exercising its power of control over the
subordinate judiciary is under a constitutional obligation to guide and protect
judicial officers from being harassed or annoyed by trifling complaints relating
to judicial orders so that the officers may discharge their duties honestly and
independently; unconcerned by the ill- conceived or motivated complaints made
by unscrupulous lawyers and litigants.
are conscious of the fact that there is very limited scope of judicial review of
an order of premature retirement from service. As observed by this Court in Rajiah's
case (supra) that when the High Court takes the view that an order of
compulsory retirement should be made against a member of the Judicial Service, the
adequacy or sufficiency of such materials cannot be questioned, unless the materials
are absolutely irrelevant to the purpose of compulsory retirement. We also add that
when an order of compulsory retirement is challenged in a court of law, the
Court has the right to examine whether some ground or material germane to the
issue exists or not. Although, the Court is not interested in the sufficiency of
the material upon which the order of compulsory retirement rests.
Court in High Court of Punjab & Haryana v. Ishwar Chand Jain, (1999) 4 SCC
579, has discussed the purpose, importance and effect of the remarks made during
inspection which ultimately become the part of the ACR of the concerned
Judicial officer. This Court has observed thus: Since late this Court is watching
the spectre of either judicial officers or the High Courts coming to this Court
when there is an order prematurely retiring a judicial officer. Under Article
235 of the Constitution the High Court exercises complete control over subordinate
courts which include District Courts.
Inspection of the subordinate
courts is one of the most 20important functions which the High Court performs for
control over the subordinate courts. The object of such inspection is for the purpose
of assessment of the work performed by the Subordinate Judge, his capability, integrity
and competency. Since Judges are human beings and also prone to all the human failings
inspection provides an opportunity for pointing out mistakes so that they are avoided
in future and deficiencies, if any, in the working of the subordinate court, remedied.
Inspection should act as a catalyst in inspiring Subordinate Judges to give the
best results. They should feel a sense of achievement.
encouragement. They work under great stress and man the courts while working under
great discomfort and hardship. A satisfactory judicial system depends largely on
the satisfactory functioning of courts at the grass-roots level. Remarks recorded
by the Inspecting Judge are normally endorsed by the Full Court and become part
of the annual confidential reports and are foundations on which the career of a
judicial officer is made or marred.
Inspection of a subordinate
court is thus of vital importance. It has to be both effective and productive.
It can be so only if it is well regulated and is workman-like. Inspection of subordinate
courts is not a one-day or an hour or a few minutes' affair. It has to go on
all the year round by monitoring the work of the court by the Inspecting Judge.
A casual inspection can hardly be beneficial to a judicial system. It does more
harm than good.
is also well settled that the formation of opinion for compulsory retirement is
based on the subjective satisfaction of the concerned authority but such satisfaction
must be based on a valid material. It is permissible for the Courts to ascertain
whether a valid material exists or otherwise, on which the subjective satisfaction
of the administrative authority is based. In the present matter, what we see is
that the High Court, while holding that the track record and service record of the
appellant was unsatisfactory, has selectively taken into consideration the service
record for certain years only while making extracts of those contents of the
There appears to be
some discrepancy. We say so for the reason that the appellant has produced the
copies of the ACR's which were obtained by him from the High Court under the
Right to Information Act, 2005 and a comparison of these two would positively indicate
that the High Court has not faithfully extracted the contents of the ACRs. The High
Court has taken the decision on the basis of selective service record which includes
the summarized ACR's, as quoted in the impugned judgment, for the selected
The ACR for the
initial years: 1975-76 and 1976-77 remarks him as capable of improvement against
quality of work, the ACR's for the years: 221982-83, 1983-84 points that his
work is unsatisfactory, the ACR's for the year: 1984-85, 1987-88 remark his work
performance as unsatisfactory with bad reputation and quarrelsome attitude, and
the ACR for the later years: 1993-94 & 1994-95 refers to some private complaints
and remark that his powers were divested by the High Court and the ACR's for the
recent years: 1997-98 & 1998-99 points that no defect in judicial work but
disposal of cases is poor.
Whereas, the appellant
furnished certain Service records which includes: the ACR recorded by inspecting
Judge in the year 1985 which evaluate the appellant as `B'-Satisfactory against
the entry "Net result", further the ACR prepared by the District and
Sessions Judge, Samastipur for the year 1997-98 assessed him as an officer of
average merit, maintaining good relationship with bar, staffs and colleagues
but poor disposal, and the ACR prepared by the District and Sessions Judge,
Muzaffarpur for the year 1998-99 assessed him as a good officer but poor disposal.
However, his poor disposal
during this period is justified up to certain extent in the background of his
involvement in the continuous and unnecessary disciplinary proceedings which was
based on the charges of granting of bail indiscriminately, even after, the fact
that he had been exonerated of these charges long back in the year 1995 by the High
Court at Patna.
The material on which
the decision of the Compulsory retirement was based, as extracted by the High Court
in the impugned judgment, and material furnished by the appellant would reflect
that totality of relevant materials were not considered or completely ignored by
the High Court. This leads to only one conclusion that the subjective
satisfaction of the High Court was not based on the sufficient or relevant material.
In this view of the matter, we cannot say that the service record of the
appellant was unsatisfactory which would warrant premature retirement from service.
Therefore, there was no justification to retire the appellant compulsorily from
In Swami Saran Saksena
v. State of U.P., (1980) 1 SCC 12, this Court has quashed the order of Compulsory
retirement of the appellant, therein, in the public interest, which was found to
be in sharp contradiction with his recent service performance and record. This
Court observed: 3. Ordinarily, the Court does not interfere with the judgment of
the relevant authority on the point whether it is in the public interest to compulsorily
retire a government servant.
And we have been even
more reluctant to reach the conclusion we have, when the impugned order of
compulsory retirement was made on the recommendation of the High Court itself. But
on the material before us we 24 are unable to reconcile the apparent contradiction
that although for the purpose of crossing the second efficiency bar the appellant
was considered to have worked with distinct ability and with integrity beyond question,
yet within a few months thereafter he was found so unfit as to deserve
The entries in between
in the records pertaining to the appellant need to be examined and appraised in
that context. There is no evidence to show that suddenly there was such deterioration
in the quality of the appellant's work or integrity that he deserved to be compulsorily
retired. For all these reasons, we are of opinion that the order of compulsory retirement
should be quashed. The appellant will be deemed to have continued in service on
the date of the impugned order.
the District and Sessions Judge have the opportunity to watch the functioning of
the appellant from close quarters, who have reported favourably regarding the appellant's
overall performance except about his disposal, in the appellant's recent ACR
for the year 1997-98 and 1998-99. In view of this, the greater importance is to
be given to the opinion or remarks made by the immediate superior officer as to
the functioning of the concerned judicial officer for the purpose of his compulsory
The immediate superior
is better placed to observe, analyse, scrutinize from close quarters and then,
to comment upon his working, overall efficiency, and reputation. In Nawal Singh
v. State of U.P., (2003) 8 SCC 117, this Court has observed thus: 12. ... 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.
view of the above discussion, we are of the opinion that the High Court was not
justified in sustaining the orders passed by the Full Court of the same High
Court. Accordingly, we allow this appeal, set aside the orders passed by the
High Court. Since the appellant has retired from service on attaining the age
of superannuation, he is entitled to all the monetary benefits from the date of
his notional posting as C.J.M. till his notional retirement from service on attaining
the age of superannuation, as expeditiously as possible, at any rate, within
four months from the date of receipt of a copy of this order.
(ANIL R. DAVE)