1999 Supreme(SC) 551

1999(4) Supreme 299
Supreme Court of India
(From Punjab & Haryana High Court)
D.P. Wadhwa & Santosh Hegde, JJ.
High Court of Punjab & Haryana through R.G. -Appellant
versus
Ishwar Chand Jain & Anr. etc. -Respondents
Civil Appeal No. 2465 of 1999
(Arising out of SLP (C) No. 15726 of 1998)
With
Civil Appeal No. 2466 of 1999
(Arising out of SLP (C) No. 1830 of 1999)
Decided on 26-4-1999
Counsel for the Parties :
For the Appellant in C.A. No. 2465/99 : Raju Ramachandran, Sr. Advo­cate, Ejaz Maqbool, B.K. Misra, Subir Ranjan, Advocates.
For the Appellant in C.A. No. 2466/99 : Ms. Shikha Ray Pabbi, Sanjeev K. Pabbi, (Rishi Malhotra), Advocate for Prem Malhotra, Advocate.
For the Respondent in C.A. No. 2465/99 : M.N. Krishnamani, Sr. Advo­cate, K.K. Mohan, Ajay Jain, Manoj Goel, Jinender Jain, Advocates.
For the Respondent in C.A. No. 2466/99 : Rajiv Dutta, Advocate.

Important Point
Where during suspension of Addl. District Judge on allegation of misconduct disciplinary proceeding, was dropped but ordered to be retired compulsorily, though the order was innocuously worded in fact an order of removal from service and could not be sustained.

Headnote:(i) Service Law-Compulsory retirement-Validity of order-Addl. District Judge-Addl. District Judge kept under suspension pending departmental enquiry on allegation of misconduct-Disciplinary proceeding based on recommendation of full court decision which in turn based on adverse entry in ACR-Full Court decision on basis of inspection on a single visit of inspecting Judge-Full Court’s subsequent decision to top disciplinary proceedings and recommending compulsory retirement-On facts not justified-ACR in question wherein adverse entry of ‘integ­rity doubtful’ was found entered was not proper -ACR of other years did not justify recommendation of High Court-Order of compulsory retirement though innocuously worded was in fact order of removal from service-Could not be sustained.

       Held : In December, 1995 judges comprising the Full Court were not the same as that in the year 1985 when probation of Jain was terminated. There were new appointments of judges and there were judges, who had come on transfer from other High Courts. They could not be aware of the circumstances leading to termination of the proba­tion of Jain and ACR given to him for the year 1984-85. In the precis of the ACRs for the Full Court ACR give to Jain for the year 1984-85 was shown as “C-Below Average”. The inspecting judge for the year 1984-85 had graded the officer as “B+ Good” but the Full Court modified the same to “C-Below Average”. This Court in earlier appeal filed by Jain against termination of his probation held that the modification of the entry by the High Court was without any material and was not sustainable in law. It meant that the Supreme Court re­stored the grading of Jain in his ACR for the year 1984-85 as “B+ Good”. There is no indication of this in the precis prepared by the Registry which certainly would have misled many of the judges of the Full Court. There is no ACR recorded for the years 1992-93, 1993-94, 1994-95 and for nine months of 1995-96 when the Full Court met on December 12, 1995. In its earlier meeting on September 22, 1995 it recorded ACR for the year 1991-92 graded Jain as “C-integrity doubt­ful”. In coming to this conclusion Full Court relied on the inspection report prepared by the inspecting judge on February 22, 1992 where he graded Jain as “integrity doubtful” and gave his note which we have quoted above. There is no material forthcoming as to why the inspec­tion report of February 1992 came to be considered by the Full Court in September, 1995 and why there could be no inspection from that year till holding of the Full Court meeting. Inspection note by the in­specting judge gives an impression that the inspected the Court of Jain and visited the bar room before he gave his report. Fact, however, remains that the inspecting judge inspected the Court of Jain only in March, 1992. Inspecting Judge also noted that there were some complaints which formed the subject-matter of the disciplinary proceedings against him. This also does not appear to be correct inasmuch as on the date of the inspection report no disciplinary proceedings were pending against Jain. There were also no particulars of the complaints whether these were in writing or oral and if these related to the judicial work performed by the officer. At least some of the cases in which Jain was found to have acted improperly could have been mentioned when there were many complaints from the members of the Bar. The inspection note is certainly flawed and could not have formed the basis by the Full Court to record the integrity of the officer was doubtful and to grade him “C”. Moreover we were told at the Bar and it was not contradicted that the inspecting Judge took charge of Jind district only on November 21, 1991 and within three months. i.e., on February 25, 1992 gave his inspection report. This is certainly not satisfactory. The ACR for the year 1991-92 is, therefore, to be kept aside. That being the position if we now refer to the precise of the ACRs of Jain there were only four ACRs and these are the for the years 1983-84 (B-Average/satisfactory), 1984-85 (B+ Good), 1988-89 (B-Satisfactory) and 1989-90 (B+(good). On the basis of these ACRs it is difficult to hold that the recommendation of the High Court could be justified under clause (c) of third principles laid in Baikunth Nath Das case. (Para 29)

       From the resolutions of the Full Court of December 19, 1995 and January 11, 1996 it is apparent that Jain was retired while under suspension. It appears that the High Court on its administrative side decided to keep disciplinary proceedings against Jain pending for the purpose of imposing the cut on his retiral benefits. The conclusion is obvious that action of the High Court in retiring Jain was based on the allegation of misconduct, which was subject matter of the inquiry before a Judge of the High Court and which appears to us to be the basis for recording of adverse remarks by the High Court in the ACR of the officer for the year 1991-92. There is substance in the argument of Mr. M.N. Krishnamani, learned counsel for Jain, that the High Court found a short cut to remove Jain from service when the order of retirement was based on the charges of misconduct, subject matter of the inquiry. We agree with Mr. Krishnamani that the impugned order of compulsorily retiring Jain though innocuously worded is in fact an order of his removal from service and cannot be sustained. High Court on its judicial side was correct in setting aside the order compulso­rily retiring Jain and allowing the writ petition of Jain to the extent mentioned in the impugned judgment. In this issue of the matter it is not necessary for us to consider other submissions made before us if Jain could at all have been compulsorily retired under Rule 3.26 of the Punjab Civil Service Rules, Volume I, Part 1, he being a member of the superior judicial service. (Para 30)

       (ii) Constitution of India-Article 235-High Court’s control over subordi­nate courts-Inspection of subordinate courts-Object is for purpose of assessment of work performed by subordinate judge-Inspec­tion has to on all the year round-Casual inspection or inspec­tion on basis of motivated complaints cannot be basis for Annual confidential Report of a Subordinate Judge.

       Held : Since late this Court is watching the specter of either judicial officers or the High Courts coming to this Court when there is an order pre-maturely retiring a judicial officer. Under Article 235 of the Constitution High Court exercises complete control over subordi­nate courts which include District Courts. Inspection of the subordinate courts is one of the most important functions which High Court performs for control over the subordinate courts. Object of such inspection a 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 best results. They should feel a sense of achievement. They need encouragement. They work under great stress and man the courts while working under great discomfort and hardships. A satisfactory judicial system depends largely on the satisfactory functioning of courts at grass root level. Ramarks 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 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 few minutes affair. It has to go on all the year round by monitoring the work of the court by the inspecting judge. The casual inspection can hardly be beneficial to a judicial system. It does more harms than good. As noticed in the case of R. Rajiah (supra) there could be all conceived or motivated complaints. Rumour mongering is to be avoided at all costs as it seriously jeop­ardizes the efficient working of the subordinate courts. (Para 32)

       Time has come that a proper and uniform system of inspection of subordinate courts should be devised by the High Courts. In fact the whole system of inspection need rationalization. There should be some scope of self-assessment by the officer concerned. (Para 33)