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2017 Supreme(Gau) 1160
IN THE HIGH COURT OF GAUHATI
UJJAL BHUYAN, PARAN KUMAR PHUKAN, JJ.
Jamuna Gogoi Phukan - Petitioner
Versus
Gauhati High Court & Ors. - Respondents
W.P(c) No. 1951 of 2013
Decided On : 21-09-2017
For the Petitioner:Mr. K.N. Choudhary and Mr. S. Dutta, Advocates.
For the Respondents:Mr. N. Goswami, GA, Mr. U.K. Nair and Mr. M.P. Sharma, Advocates.
Headnote:
Service – Judicial officers - compulsory retirement on a Judicial Officer - quashing of resolution of the Administrative Committee of the Gauhati High Court resolution of the Full Court of Gauhati High Court and the Government notification issued by the Legal Remembrancer and Secretary to the Govt. of Assam, Judicial Department imposing the penalty of compulsory retirement on the petitioner, a Judicial Officer belonging to the Assam Judicial Service – Held, very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee shall be put in the same position in which he would have been but for the illegal action of the employer. The injury suffered by a person so dismissed or removed or otherwise terminated from service cannot easily be measured in terms of money. Supreme Court held that reinstatement of such an employee, which is preceded by a finding that the action taken by the employer is ultra vires the relevant statutory provision or the principles of natural justice would entitle the employee to claim full back wages. If the employer wants to deny back-wages to the employee, then he has to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments – Petition allowed
Ujjal Bhuyan, J.
1. Heard Mr. K. N. Choudhury, learned Senior counsel assisted by Mr. S. Dutta, learned counsel for the petitioner; Mr. N. Goswami, learned Govt. Advocate, Assam for respondent No.1 and Mr. U.K. Nair, learned Senior counsel assisted by Mr. M.P. Sharma, learned counsel for respondent No. 2, i.e., Gauhati High Court.
2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of resolution of the Administrative Committee of the Gauhati High Court dated 23.03.2011, resolution of the Full Court of Gauhati High Court dated 28.05.2011 and the Government notification dated 09.06.2011 issued by the Legal Remembrancer and Secretary to the Govt. of Assam, Judicial Department imposing the penalty of compulsory retirement on the petitioner, a Judicial Officer belonging to the Assam Judicial Service.
3. As would be evident from the above, in this proceeding, we are called upon to adjudicate the legality and correctness of the decision of the Administrative Committee and the Full Court in imposing the penalty of compulsory retirement on a Judicial Officer.
4. Before we proceed further, it would be apposite to remind ourselves about the duties of a Judge on the administrative side as well as on the judicial side. A High Court Judge not only discharges judicial functions but also discharges administrative functions. A decision taken on the administrative side is certainly open to be scrutinized on the judicial side by invoking the power of judicial review. The duties of a Judge on the administrative side vis-a-vis on the judicial side was succinctly delineated by the Supreme Court in the case of Madan Mohan Choudhury v. State of Bihar, (1999) 3 SCC 396 and we feel that it would be most appropriate to extract the relevant portion of the same, which is as under:-
"The recommendation of the High Court on the basis of which the appellant, who held the rank of Addl. District & Sessions Judge, was compulsorily retired from service, exhibits the tragic fact that the highest judicial body of the State which abhors anything done contrary to the rule of law or done in a whimsical manner or arbitrarily, can itself act in that manner on the administrative side. Still, the plea that High Court Judges suffer from "split personality" cannot be accepted for the pleasant fact that though on the administrative side they might have had acted as ordinary bureaucrats, once they don the robes, they forget all their previous associations and connections. The transformation is so complete and real that even though they themselves were part of the decision making process, they quash their own administrative decisions in exercise of their power of judicial review and thus maintain the majesty and independence of the Indian judiciary in which the people have always reposed tremendous faith. In the instant case, however, the order of compulsory retirement dated 2.8.1997 passed by the State Government on the High Court's recommendation has been upheld and it has fallen to our lot, in this appeal, to scrutinise the validity of this order."
5. In the aforesaid judgment of Madan Mohan Chouhury (supra), Supreme Court had aptly remarked that though on the administrative side, High Court Judges might have acted as bureaucrats, once they don the robes, they forget all their previous associations and connections. The transformation is so complete and real that even though they themselves were part of the decision-making process, they quash their own administrative decisions in exercise of their power of judicial review and thus maintain the majesty and independence of the Indian judiciary.
6. Keeping the above in mind, we may now proceed to deal with the case presented by the petitioner.
7. It all started with the presentation of the Annual Confidential Report (ACR) of the petitioner for the year 2005 before the reviewing authority who was the Hon'ble Portfolio Judge. Be it stated that at that point of time, pe
