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, the Bench said.
The Supreme Court in High Court of Judicature at Patna vs. Ajay Kumar Srivastava, has upheld a Patna High Court judgment, which had set aside an order of compulsory retirement of a district judge, on the ground that it was passed as ‘punishment’ without conducting disciplinary enquiry.
Though it upheld the order of the high court, the bench comprising Justice J Chelameswar and Justice Abhay Manohar Sapre observed that the high court is duty bound to take disciplinary action against the judicial officer, if there are serious allegations of misconduct on his part.
“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,” the court said.
The Full Court of Patna High Court had approved a resolution of a standing committee to compulsorily retire a judicial officer against whom serious allegations of misconduct were received by the Registrar (Vigilance) and the inspecting judge. The judicial officer approached the high court against this contending that ‘compulsory retirement’ was passed as a punishment, without conducting enquiry. The high court, setting aside the order, observed: “Compulsory retirement provided for under a Service Rule is no doubt not a punishment. However, if the power under such provision is resorted to in a case where acts of misconduct are presumed, the exercise tends to become colorable. What is prohibited from being done directly cannot be permitted to be done indirectly.”
The high court had further observed that, in the instant case, measure of compulsory retirement was taken not in the ordinary course of things, but on the basis of certain allegations, without conducting enquiry and, therefore, it partakes of the character of punishment.
Read the order here.
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