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BRIJESHWAR PRASAD MATHUR versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Brijeshwar Prasad Mathur v. State Of U.P. And Others - WRIT - A No. 55071 of 2005 [2006] RD-AH 16955 (27 September 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

RESERVED.

CIVIL MISC. WRIT PETITION NO.  55071  OF 2005.

Brijeshwari Prasad Mathur   v.   State of U.P. & another.

..........................

Hon'ble Sushil Harkauli, J.

Hon'ble G.P. Srivastva, J.

( Delivered by Hon'ble Sushil Harkauli, J.)

The petitioner joined the U.P. Judicial Service in the year 1979. He has been compulsorily retired on the recommendation of the High Court by the order of the Governor of Uttar Pradesh, who is the appointing authority, dated 17.5.2005 (Annexure ''P-15' to the writ petition).

By this writ petition the petitioner challenges an adverse entry given to him by the High Court for the year 2002-03, which was communicated to the petitioner by letter dated 11.2.2004. The petitioner is also challenging the rejection of his representation against the said adverse entry by the Administrative Committee of this Court, rejection being communicated to the petitioner by the letter of the Registrar (Conf.) dated 12.4.2005.

Learned counsel for the petitioner first assailed the adverse entry.

For appreciating the adverse entry, it may be mentioned here that the petitioner, at the relevant time, was working as Additional District & Sessions Judge, Mainpuri, and Sessions Trial No. 59 of 2002 was pending before him. One of the accused namely Majid had applied for bail in respect of the offence. The High Court declined to grant bail and instead by order dated 29.4.2002 directed the trial court (petitioner) to conclude the sessions trial within four months, if possible. After this order dated 29.4.2002, the petitioner, instead of concluding the sessions trial, passed an order dated 5.6.2002 releasing the same accused, Majid, on bail. A copy of the order passed by the petitioner is enclosed with the writ petition as Annexure ''P-10-C'. The order says that none of the four witnesses, which had been examined in the trial till that stage, had given evidence against the particular accused, Majid, because of which Majid was being released on bail.

Although, in the writ petition, the petitioner also relies upon a bail order dated 16.5.2002 passed by the High Court in which a co-accused of Majid, viz. Habib, has been released on bail, but the bail order passed by the petitioner does not refer to the said bail order of the High Court at all. Such an important circumstance could not have been missed out from the petitioner's order except in the circumstance that the petitioner, at the time when he passed his bail order on 5.6.2002, was not aware of the bail order passed by the High Court on 16.5.2002.

In this backdrop, the adverse entry, which is under challenge, is reproduced as below :

"His disposal of cases is 303.65% which is above standard. He has made regular inspection, which are practical and effective. He has proper control over office. During last about one year a large number of complaints have been received against him by general public as well as Bar against the corrupt practices of the Officers. The member of bar demanded stern action against the officer by cutting of his court picketing and dharna every thing had happened in the Judgeship against his corrupt practices.

A list of cases has been supplied to me by the Bar in which the charges have been made. I called for the records of some of the cases and personally perused the same. In one of the cases, in S.T. No. 59 of 2002 State  Vs.  Majid and others, the bail of the accused persons has been rejected by the District Judge twice. This Hon'ble Court also rejected the bail application of the accused directing the trial court to decide the trial within four months. But instead of deciding the trial, the Officer has granted the bail to the accused within 1-1/2 months on the application of the accused on the ground that some of the prosecution witnesses did not support the prosecution case. This is a gross negligence on the part of the Officer, which cannot be tolerated. Seeing the attitude of this Officer, I also recommend to the Hon'ble Chief Justice for his transfer and necessary action. Vigilance enquiry is also pending against him.

Integrity : doubtful. Overall assessment : Fair."

During the hearing of this petition, on 3.7.2006, the following order was passed in this case :

"List immediately after ten days to enable the learned counsel for the petitioner to file a supplementary affidavit giving more details of the sessions trial including the fact as to how many other witnesses had been cited by the prosecution apart from P.W. 1 to 4."

A supplementary affidavit has been filed by the petitioner today, purporting to be in compliance of the aforesaid order dated 3.7.2006. The supplementary affidavit clearly evades the issue. This Court had wanted to know from the petitioner as to how, after merely examining the four witnesses, the petitioner could have guessed that the other prosecution witnesses, if any, mentioned in the charge-sheet, who were still to be examined in the sessions trial, would also not name the accused, who was being released on bail by the petitioner in the sessions trial, despite rejection of the bail by the High Court. The supplementary affidavit merely says that after these four witnesses, who had examined till the bail order, only two more witnesses have been examined so far and the sessions trial is still pending. The petitioner has evaded the question as to how many other witnesses had been mentioned in the charge sheet. At the hearing today, we had initially dictated an order, which had also been scribed in the order-sheet and has been thereafter scored out. The order granted further time to the learned counsel for the petitioner to file a better affidavit. However, the order was scored out because the learned counsel for the petitioner insisted that the petitioner would not file any further affidavit and that this Court should hear and decide the matter today finally. Thus the evasion of the querry of this Court appears from above conduct to be deliberate,

We have, therefore, heard the matter finally at great length. In fact we granted a little extra indulgence to the learned counsel for the petitioner during the hearing only because the petitioner is a Judicial Officer and he should not feel that his case has gone unheard.

Learned counsel, during arguments, relied heavily upon the following points :

1. According to the petitioner, after the grant of the disputed bail there was an inspection by the Administrative Judge/Inspecting Judge in which this alleged misdeed of the petitioner was not detected.

                     To us the circumstance appears to be wholly irrelevant.

2. According to the petitioner, with respect to this grant of bail the petitioner was summoned to Allahabad and the matter was discussed between him and the then Chief Justice in the presence of the Administrative Judge and at such alleged meeting during the alleged discussions nothing wrong was found in grant of that bail.

                         We afraid that this kind of an oral conversation, claimed by the petitioner with a retired Chief Justice, cannot be relied on for upsetting what is glaring from the record.

3. The adverse entry, which has been quoted above in this judgment, has been given because of motivated complaints by some advocates. In this connection reliance has been placed upon a decision of the Supreme Court in the case of High Court Vs. Ishwar Chandra Jain reported in (1999) 2 UPLBEC 1097.

                          The contention is absolutely hollow.  The complaints formed the basis of calling for the records and examining the records. The entry, that instead of deciding the trial the officer had released the accused on bail despite rejection of the bail by the High Court, is not based upon any complaint but is based upon examination of records of the court below.

4. The petitioner relies upon Bishwanath Rasad Singh Vs. State of Bihar  (2001) 2 SCC 305 and on that basis claims that the adverse entry could not have been given to him after such great delay.

                               Factually this contention is also not correct. The petitioner is treating the date of communication of the entry as the date of award of the entry. The entry is of the year 2002-03. According to the procedure, after the close of the year in question, entry of all the officers of the subordinate judiciary is given by the respective District Judges and then forwarded to this Court. The files are then placed by the Registry before the respective Administrative Judges for giving the annual entries, which is done by the respective Administrative Judges at their earliest convenience. All this takes time. Thereafter, the files are sent to the Confidential Section where adverse entries are sorted out, letters of communication are prepared containing only those adverse parts of the A.C.R.s which are to be communicated and thereafter the letters are issued to the officers concerned.

                      The entry for the year 2002-03 has been communicated to the petitioner on 11.2.2004, which is not unduly delayed. In the case of Bishwanath Prasad Singh  v.  State of Bihar (supra) relied upon by the petitioner and referred to above, the Supreme Court had found that no inspection had been carried out for a long period of more than six years between May 1989 and January 1996 and apparently there was no inspection of the work and conduct of the officer and no timely entry was made in the confidential roles. Again, between 1997 and 2000, regular periodical inspections were not carried out and, therefore, a special inspection by a Judge had to be arranged under the order of the Chief Justice for the purpose of evaluation or as ordained by the Supreme Court in the 1993 Judges Association case. This can be found in paragraph 30 of the law report. We are at a loss to understand how that decision can be applied in the facts of the present case.

Learned counsel for the petitioner then argued that the representation of the petitioner against the adverse entry was deliberately rejected by the High Court only in order to facilitate his compulsory retirement.

           

        Now this is quite a wild and baseless and irresponsible argument. This argument, in effect, means that the Administrative Committee consisting of 9 senior Judges headed by the Chief Justice of the High Court were so predisposed towards retiring the petitioner that they acted mala fide and rejected his representation against the adverse entry.

Adverse entries against which representations are pending can also be considered for the purpose of compulsory retirement, according to law laid down by the Supreme Court, therefore it was not necessary to reject the representation for retiring the petitioner. Besides, the entry, as stated above, is based on record. Grant of a bail by a subordinate Judicial Officer, after its rejection by the High Court, requires exceptionally strong and unusual grounds, which is not the case here. We would not like to say anything further on this obvious matter. The allegation of mala fides require the individuals against whom such allegations have been made to be implemented by name personally, which has not been done in this writ petition.

At this point, we may mention that in paragraph 36 of the counter affidavit of the High Court it has been stated that in an income tax investigation against the petitioner, information was sought from him vide notice dated 11.7.1997 about the source of money for purchase of a car by him on 12.12.1995. The petitioner had replied Rs. 1,30,000/- which was a part of the total sale consideration was borrowed by him from the Central Bank of India, Rampur. However, on enquiry, the said Bank informed that it had not granted any loan to the petitioner. This paragraph 36 of the counter affidavit has been replied to in paragraph 18 of the rejoinder affidavit of the petitioner, but there has been no attempt whatsoever to explain this fact, which has been mentioned in the counter affidavit. The petitioner has taken an evasive shelter behind a non-speaking resolution of a Full Court, which says that the enquiry report of the Enquiry Officer against the petitioner should not be accepted and no further action need to be taken. Whatever be the circumstances in which such a resolution was passed, the fact remains that the petitioner invoking discretionary and equitable jurisdiction of this Court under Article 226 of the Constitution of India was duty bound to explain the aforesaid averments in paragraph 36 of the counter affidavit, which have a direct bearing upon his integrity before he could expect this Court to exercise the discretion jurisdiction in his favour.

Learned counsel for the petitioner then argued that the compulsory retirement of the petitioner is not justified on the basis of the adverse material, which has been mentioned in the counter affidavit of the High Court. He has relied upon certain parts of the adverse entries which have been expunged subsequently, and also upon a resolution of the Full Court in its meeting dated 20.10.1999 wherein the Full Court resolved that the enquiry report dated 19.12.1998 by the District Judge, Basti, into the charge sheet of departmental enquiry against the petitioner containing 44 charges should not be accepted and no further action should be taken against the petitioner. However, we find that even if we ignore the remarks, which have been subsequently expunged, yet it transpires from the counter affidavit that for the year 1996-97 adverse remarks, which survived even after expunction of the other remarks for the said year, are, firstly, that he is not fair and impartial in dealing with the public and the Bar and that some of his interim orders were found arbitrary. Further for the year 2002-03 the adverse entry, which has already been quoted above, says that the integrity of the officer is ''doubtful'. In the case of State of U.P.  v.  Vijay Kumar Jain AIR 2002 S.C.. 1345 it has been held by the Supreme Court that withholding of integrity of a government employee is a serious matter and the vigour and sting of the adverse entry is not wiped out merely because  it is relatable to 11th or 12th years before passing of the order of compulsory retirement. This was said in the context of an Engineer in the employment of U.P. Government. In the case of a Judicial Officer the said observation will apply with much greater force for the obvious reason that integrity is an indispensable requirement in a Judicial Officer.

In the case of Nawal Singh  v.  State of U.P. AIR 2003 S.C. 4303 the Supreme Court has held that it would not generally interfere with an order/recommendation of compulsory retirement passed by a Committee of High Court Judges since the order is based on subjective satisfaction of the authority and because Judicial Service cannot afford continuance of persons with doubtful integrity.

The last limb of the petitioner's argument was that the High Court had merely sent a recommendation to the appointing authority, i.e. the Governor of the province, for compulsory retirement of the petitioner and not the material on which such recommendation was based and, therefore, there is non-application of independent mind by the appointing authority. In support of this proposition, reliance has been placed from the petitioner's side on the case of Madan Mohan Choudhary  v.  State of Bihar (1999) 3 S.C.C. 396.

Firstly, we are not able to spell out any such requirement from the said decision of the Supreme Court that the High Court is bound, while forwarding a recommendation of compulsory retirement, to also forward the entire material on which such recommendation is based. Moreover, in the case of Registrar, High Court of Madras  v.  R. Rajiah (1988) 3 S.C.C. 211 it has been held that the control under Article 235 of the Constitution of India includes the power of the High Court to take the decision regarding compulsory retirement and although the said decision/recommendation of the High Court takes effect only after the order is passed by the State Governor, but the Governor is obliged to make an order in accordance with the recommendation of the High Court (paragraph 16). Further, in that very case the Supreme Court has said as follows with regard to the judicial review of compulsory retirement cases :

"There can be no doubt that when the High Court takes the view that an order of compulsory retirement should be made against a member of the subordinate judicial service, the adequacy or sufficiency of such materials cannot be questioned, unless the materials are absolutely irrelevant for the purpose of compulsory retirement."

A plethora of other case law has been cited by both sides which are either a repetition of the case law referred to above, or are wholly irrelevant to the issues which form the basis of this decision and, therefore, we are not inclined to unnecessarily burden this judgment by discussing the said case law. However, we are giving a list of the same :

1. (1978) 2 S.C.C. 102 (State of U.P.  v.  Batuk Deo Pati Tripathi).

2. (1992) 2 S.C.C. 299 (Baikuntha Nath Das & another  v. Chief District Medical Officer, Baripada).

3. (1997) 6 S.C.C. 228 (I.K.Misra  v.  Union of India & others).

4. AIR 1998 S.C. 3058 (M.S. Bindra  v.  Union of India & others).

5. (1998) 1 S.C.C. 451 (State of M.P.  v.  Indra Sen Jain).

6. AIR 1995 S.C. 1161 (State of U.P.  v.  Bihari Lal).

7. (1998) 4 S.C.C. 92 (State of Punjab  v.  Gurdas).

8. (1996) 5 S.C.C. 331 (State of Orissa  v.  Ram Chandra Das).

9. (1997) 6 S.C.C. 228 (I.K. Misra  v.  Union of India & others).

10. (1980) 2 S.C.C. 15 (Union of India  v.  M.E. Reddy).

11. (1997) 4 S.C.C. 14 (Swantra Singh  v.  State of Haryana).

12. 1999 A.L.R. (37) 89 (O.P. Rudra  v.  The High Court of Judicature at Allahabad).

13. JT 1997 (3) s.c. 26 (Braj Kishore Thakur  v. Union of India & others).

14. (2001) 3 UPLBEC 2473 (P.C. Joshi  v.  State of U.P. And others).

15. 1976 (1) S.L.R. 378 (Sarat Chandra Misra  v.  The State of Orissa and others).

In view of what has been stated above, it cannot be said that the materials, which have formed the basis of the decision of compulsory retirement, are absolutely irrelevant for the purpose of compulsory retirement.

In the circumstances, we are unable to interfere in the order of compulsory retirement. The writ petition is accordingly dismissed.

Dated : 25th September, 2006.

PG.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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