(2017) 5 SCC 139
Order dated 1-12-2016
(Before Dr T.S Thakur, C.J and Dr D.Y Chandrachud, JJ.)
Civil Appeal No. 8665 of 2015
1. Respondent 1 who was at the relevant point of time a District and Sessions Judge in the Bihar Higher Judicial Services was compulsorily retired in exercise of the powers vested with the Government on the recommendation made to that effect with the High Court of Judicature at Patna. The High Court has, in terms of the impugned judgment 2015 SCC OnLine Pat 5942, quashed the order of compulsory retirement. The High Court has taken the view that the decision to compulsorily retire the respondent was not justified in the facts and circumstances of the case. The present appeal questions the correctness of the said judgment.
2. From a perusal of the record, we find that the performance of the respondent has been assessed as good or very good for all the previous years except one when it was assessed as average. The averments made in Paras 18 and 47 of the counter-affidavit filed by the High Court in the writ petition clearly support this position. Para 47 is as under:
“That in the statement made in Para 7 of the Supplementary Affidavit it is stated that from perusal of the records it is apparent that in June 1998, the then Hon'ble Inspecting Judge of the Purnea Judgeship has assessed the petitioner “below average” but that was not related to integrity and after that he has always been assessed “good” and “very good”.”
3. Along with the counter-affidavit filed by Respondent 1 before this Court is enclosed an inspection report drawn by the Inspecting Judge of Jehanabad Judgeship where Respondent 1 was posted immediately before his compulsory retirement. The Inspecting Judge has while dealing with the work and conduct of the respondent observed as under:
“(i) Shri Ajay Kumar Srivastava, District & Sessions Judge, Jehanabad
He joined the Judgeship of Jehanabad on 14-2-2012. He has proved to be an able Officer with good knowledge of law. I found him having requisite amount of maturity and administrative skills. He is providing requisite leadership to the judicial officers. In the monthly meeting of the Judicial Officers, his attempts are always to inspire them for improving their disposal rate and to find out the reason in case any of the officers has not been able to meet his target. I have found him taking keen interest in overall improvement of Judgeship. While sitting with him in the courtroom, I found him well prepared for the case. I also found him efficient in the court management as the atmosphere in the courtroom was very congenial. During the inspection, he was hearing Title Appeal No. 13 of 2012 in the matter of easement right for passage. I sat in his courtroom for some time. I have also perused the judgments delivered by him in Sessions Trial No. 190 of 2010. Criminal Appeal No. 51 of 2012, Criminal Appeal No. 62 of 2012 and Misc. Appeal No. 13 of 2011. His judgments are good on facts and law.”
4. It was argued on behalf of the respondents that neither his record nor the work and conduct assessed by the Inspecting Judge prior to the passing of the compulsory retirement order supports the view taken by the High Court that Respondent 1 had outlived his utility. The High Court was on the judicial side perfectly justified in holding that the compulsory retirement order was legally unsustainable.
5. Mr P.H Parekh, learned Senior Counsel for the High Court however made a twofold submission. Firstly, he contended that the respondent had been proceeded against for misconduct and awarded a punishment of being reduced to the lowest of the pay scale which brought him to the bottom of the cadre in which he was working. This, according to Mr Parekh, was a relevant consideration to be kept in view apart from other circumstance in support of the conclusion that he had outlived his utility. It is, however, significant to mention that the incident in connection with which he was so punished related to the year 2000-2001. More importantly, Respondent 1 had been promoted as District Judge once again on 30-9-2011 which implied that his work, conduct and performance was found to be satisfactory and worthy of entitling him to promotion. Even when the earlier punishment may have been relevant, the subsequent promotion too was relevant for determination of his overall utility.
6. Mr Parekh argued that apart from his record and the previous disciplinary proceedings which the High Court appear to have considered, there may be some other material also which the High Court may have taken into consideration. He seeks time to verify whether there was any such material and to produce the same.
7. Although the counter-affidavit filed by the High Court in the writ petition has not referred to nor even the SLP makes any such reference to any such material, we see no reason to deny to Mr Parekh, an opportunity to look for other material that the High Court may have considered and to produce the same before us. List again on Tuesday i.e 6-12-2016. Needful be done in the meantime.
(2017) 5 SCC 141(1)
Order dated 8-12-2016
(Before Dr T.S Thakur, C.J and Dr D.Y Chandrachud and L. Nageswara Rao, JJ.)
Civil Appeal No. 8665 of 2015
8. Mr Pravin H. Parekh, learned Senior Counsel appearing on behalf of the appellant has today filed before us four bound volumes containing material which according to him was considered by the Standing Committee of the High Court and by the Full Court while taking a decision regarding the compulsory retirement of the respondents. The learned counsel for the respondents however submits that the said material was never put up either before the Standing Committee or the Full Court and that the assertion that the said material was actually considered by the Standing Committee and the Full Court is factually incorrect. He submits that the minutes of the meeting of the Standing Committee make it amply clear that only such of the files as are mentioned in the agenda column of the minutes were put up for consideration and not the entire material which is now sought to be introduced by the appellant.
9. Mr Parekh disputes this position and seeks a short adjournment to place on record an affidavit and a copy of the agenda circulated for the meeting of the Standing Committee and the Full Court together with a set of the material that was presented to the Standing Committee and the Full Court. He may do so within four weeks.
10. List again in the month of January 2017. We make it clear that the appellant shall be free to urge all such contentions as are otherwise open to them.
(2017) 5 SCC 141(2)
Order dated 12-1-2017
(Before J. Chelameswar and Abhay Manohar Sapre, JJ.)
Civil Appeal No. 8665 of 2015
11. The appellant is the High Court of Patna. The first respondent is a judicial officer of Bihar Higher Judicial Service who was compulsorily retired on the ground that he was no more of any utility for the Bihar Higher Judicial Service. The respondent successfully challenged the said order. By the impugned judgment 2015 SCC OnLine Pat 5942 under appeal, the High Court opined that the compulsory retirement order impugned before it was not sustainable. Hence the appeal.
12. During the pendency of the matter, on two earlier occasions, this Court passed two orders dated 1-12-2016 and 8-12-2016. The substance of the said orders is that the appellant submitted before this Court that there are serious allegations of misconduct against the first respondent, therefore, the continuation of the respondent's service will not be in the larger public interest and the judiciary. In the context of the submissions made by the appellant, this Court by the abovementioned orders called upon the appellant to file an affidavit in support of the statements made at the Bar. Such affidavit along with huge volume of the material in support of the affidavit is filed.
13. It all boils down to this that there are serious allegations of misconduct on the part of the first respondent. If that is the case, the appellant is always at liberty to take appropriate disciplinary action against the respondent which action according to us, the High Court is duty-bound to take. If the officer whose conduct is questionable warranting his removal or compulsory retirement from the service, such an officer cannot simply be sent home with all the retiral benefits. But at the same time, if an officer is to be retired on the ground that his conduct is unwholesome, he is entitled to claim that the due process of law be followed.
14. In the circumstances, we do not see any reason to interfere with the impugned judgment 2015 SCC OnLine Pat 5942 of the High Court under appeal. The civil appeal is dismissed. The judgment under appeal recognises the liberty of the appellant to initiate disciplinary action against the respondent if the appellant is so advised. Though it is not necessary, in the circumstances, we reiterate the same.