Rajasthan High Court - Jaipur
Abhay Jain vs High Court Of Judicature Andanr on 21 October, 2019
Bench: Sabina, Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 6749/2016
Abhay Jain aged about 46 years, son of Shri Rajendra Jain,
resident of 52/4, Anand Shree Marg, Shipra Path, Masarovar,
Jaipur.
----Petitioner
Versus
1. The High Court Of Judicature for Rajasthan through its
Registrar General at Jaipur Bench, Jaipur.
2. State of Rajasthan through Principal Secretary, Law and Legal
Affairs Department, Government of Rajasthan, Secretariat,
Jaipur, Rajasthan.
----Respondents
For Petitioner(s) : Mr. R.N. Mathur Sr. Adv. assisted by
Mr. Prateek Mathur and
Mr. Shovit Jhajharia
For Respondent(s) : Mr. A.K. Sharma Sr. Adv. assisted by
Mr. V.K. Sharma
HON'BLE MRS. JUSTICE SABINA
HON'BLE MR. JUSTICE PRAKASH GUPTA
Judgment
21/10/2019
Petitioner has filed this petition under Article 226 of the
Constitution of India challenging the order dated 27.1.2016 as
well as the recommendations which were made the basis for
passing of the order dated 27.1.2016. It has been further prayed
that the inquiry initiated vide memorandum dated 7.8.2015
(Annexure-4) be set aside.
2. Case of the petitioner, in brief, is that he had stood first
in the District Judge Examination, 2013 conducted by Rajasthan
High Court, Jodhpur. Thirty-nine candidates were selected by way
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of direct recruitment from advocates' quota. Petitioner had been
practicing as a lawyer for twelve years in the High Court and was
appointed as Additional District and Sessions Judge vide order
dated 15.7.2013 (Annexure-6). Petitioner joined his duties as
Additional District and Sessions Judge at Bharatpur on 18.7.2013.
Petitioner had discharged his duties diligently and there was no
adverse report against him. Petitioner then joined as Presiding
Officer, Labour and Industrial Tribunal, Bharatpur on 6.5.2014 vide
order dated 5.5.2014. Petitioner earned outstanding/excellent
reports during his tenure as Judge, Labour and Industrial Tribunal,
Bharatpur from 6.5.2014 upto 31.12.2014. The Annual
Confidential Report (hereinafter referred to as 'ACR') for the year
2013 conveyed to the petitioner was 'Very Good'. Petitioner was
then posted as Sessions Judge, Anti Corruption Department
Cases, Bharatpur vide order dated 24.2.2015. Vide letter dated
1.9.2015 (Annexure-12), petitioner was conveyed his ACR for the
Part-I and Part-II of the year 2014, and the same reads as under:-
2014-I: Very Good
2014-II: Good. Need to improve his judicial work since I
am still the Inspecting Judge of District Bharatpur and this
officer is posted there as Spl. Judge ACD. It is informed
that an enquiry has been initiated against him u/r 16 of
the CCA Rules. As a advisory remark Officer has to
concentrate on Judicial Work and improve quality."
3. Petitioner inspected his ACR for the year 2014 and the
same has been reproduced in Para-15 of the petition, which reads
as under:-
1. Integrity of the Officer Above Board
2. If he is fair and impartial in dealing Yes
with the Public and the Bar.
3. If he is cool-minded and does not Yes
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show temper in court
4. His private character, if such as to No
lower him in the estimation of the
public and adversely affected the
discharge of his officials duties
5. Capacity of handle files systematically Good
6. Whether judgments on facts and law Yes
are, on the whole, sound, well
reasoned and expressed in good
language?
7. Whether the disposal of work is Yes
adequate?
8. Control over the office and Good
administrative capacity and tact.
9. Capacity to control the proceedings in Good
court, with firmness and follow the
procedure prescribed by law.
4. Petitioner filled up his first bi-annual report for the
period starting from 18.7.2013 upto 17.1.2014 in terms of the
letter of District Judge, Bharatpur. Second bi-annual report was
asked for the period from 18.1.2014 to 4.5.2014 and third bi-
annual report was for the period from 18.7.2014 to 17.1.2015.
Petitioner submitted representation dated 27.11.2015 against the
communication of remarks recorded in the ACR for Part-II of the
year 2014. While posted as Special Judge, ACD, Bharatpur,
petitioner decided bail application filed by Kamlesh Kumar Jalia in
a corruption case registered against him. The second bail
application filed by the accused was allowed by the petitioner, as
the charge-sheet had already been filed but no prosecution
sanction had been granted by the Government under Section 19 of
the Prevention of Corruption Act. Since the prosecution sanction of
the accused had not been granted by the competent authority, the
cognizance could not be taken against the accused.
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5. After the petitioner allowed the bail application filed by
the accused Kamlesh Kumar Jalia on 27.4.2015, he was directed
by the High Court to send his comments with regard to the
decision on the bail application. Petitioner submitted his comments
and clarified entire position which led to the passing of the bail
order. However, without any opportunity of hearing, charge-sheet
was issued to the petitioner by the Inquiry Judge. Inquiry had
been initiated against the petitioner in violation of rule 16 of the
Rajasthan Civil Services (CCA) Rules. Petitioner submitted his
representation dated 20.8.2015 (Annexure-23) to the disciplinary
authority. Petitioner moved an application raising preliminary
objections but the same was rejected by the Inquiry Judge without
affording any opportunity of personal hearing to the petitioner.
The inquiry proceedings were listed for recording of plea on
4.12.2015 and were again adjourned to 8.1.2016 to enable the
petitioner to bring on record precedents that if prima facie no
merit was found at initial stage, the inquiry could be dropped.
Thereafter, the inquiry was adjourned to 16.2.2016.
6. During the pendency of the inquiry against the
petitioner, Full Court Meeting was convened on 20.1.2016 and it
was decided to discharge the petitioner despite the pendency of
the inquiry against him on the basis of report of Higher Judiciary
Committee and in this Committee one of the member was the
Inquiry Judge. Petitioner had already completed two years of
required probation period on 17.7.2015 and no extension order or
confirmation order was passed. Hence, the order of discharge,
though appeared to be simpliciter but had been passed on account
of inquiry initiated against the petitioner.
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7. In its reply, respondent no.1 admitted the fact that the
petitioner was appointed by way of direct recruitment as
Additional District and Sessions Judge vide order dated 15.7.2013
on probation for a period of two years. Petitioner had joined his
duties on 18.7.2013. In the year 2015, the inspecting Judge
recorded that while the petitioner was working as Special Judge,
ACD Cases, Bharatpur, his integrity was not free from doubt and
certificate was withheld as he was served with charge-sheet on
serious allegations. The Administrative Judge recorded that the
integrity of the officer was doubtful and in his overall assessment,
petitioner was rated as average officer. During the probation
period of the petitioner, some complaints were received against
him with regard to his working and integrity. A departmental
inquiry was initiated against the petitioner. However, in the
meanwhile, at the end of two years of probation period of the
officers appointed vide order dated 15.7.2013 (including
petitioner) were considered by the High Court for confirmation and
the services of the petitioner were dispensed with by the State
Government vide order dated 27.1.2016 on the recommendation
of the High Court.
8. Learned R.N. Mathur Sr. Advocate appearing for the
petitioner has submitted that the petitioner had worked as an
Additional District and Sessions Judge with utmost sincerity. The
ACRs of the petitioner were 'Very Good'. One bail petition was
fixed before the petitioner under the Prevention of Corruption Act
and the competent authority had not granted prosecution sanction
of the accused till the passing of the bail order by the petitioner.
The Special Court could not take cognizance of the offence against
the accused for want of prosecution sanction. Challan had already
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been presented against the accused without the prosecution
sanction. Hence, the petitioner in his wisdom thought that the
custody of the accused was illegal on account of want of
prosecution sanction. Petitioner had granted sufficient opportunity
to the investigating agency to produce the prosecution sanction of
the accused on record but it had failed to do so till passing of the
bail order. Bail order in question has been passed by the petitioner
in accordance with law. No complaint had been filed against the
petitioner by any person with regard to bail order in question.
Prosecution had not sought cancellation of the bail granted to the
accused. Bail had been granted to the accused in view of the
change in circumstances. Petitioner had no way of knowing that
the sanction for prosecution of the accused would be granted on
the next day of passing of the bail order. Petitioner was asked to
submit his explanation with regard to the bail order passed by him
dated 27.4.2015. Petitioner had explained the entire
circumstances weighing with him while allowing the bail
application, in his reply to the notice received by him from the
High Court. However, inquiry was initiated against the petitioner
and Inquiry Officer was appointed. Charges had been framed
against the petitioner without there being any material available
with the Inquiry Officer. Charge-sheet issued to the petitioner was
also liable to be quashed. Thereafter, services of the petitioner
were dispensed with vide impugned order dated 27.1.2016.
Although, the impugned order dated 27.1.2016 appeared to be
simplicitor order but the foundation of the said order was the
inquiry initiated against the petitioner with regard to the bail order
passed by him dated 27.4.2015. Hence, the impugned order was
liable to be set aside as it was punitive in nature. Once, the
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inquiry had been initiated against the petitioner, the same was
liable to be taken to its logical end. Petitioner has been punished
unheard as he did not get the opportunity to point out his
innocence.
9. Learned counsel for the petitioner in support of his
arguments has placed reliance on the decision of Hon'ble Supreme
Court in Samsher Singh vs. State of Punjab & Anr, (1974) 2
SCC 831, wherein it has been held as under:-
"60. Rule 7(3) aforesaid provides that on the completion of the
period of probation of any member of the service, the Governor
may, on the recommendation of the High Court, confirm him in
his appointment if he is working against a permanent vacancy
or, if his work or conduct is reported by the High Court to be
unsatisfactory, dispense with his services or revert him to his
former substantive post, if any, or extend his period of
probation and thereafter pass such orders as he could have
passed on the expiry of the first period of probation.
61. Rule 9 of the punishment and appeal Rules contemplates an
inquiry into grounds of proposal of termination of the
employment of the probationer. Rule 7 on the other hand
confers power on the Governor on the recommendation of the
High Court to confirm or to dispense with the services or to
revert him or to extend his period of probation.
62. The position of a probationer was considered by this Court
in Purshotam Lal Dhingra v. Union of India. Das, C.J. speaking
for the Court said that where a person is appointed to a
permanent post in Government service on probation the
termination of his service during or at the end of the period of
probation will not ordinarily and by itself be a punishment
because the Government servant so appointed has no right to
continue to hold such a post any more than a servant employed
on probation by a private employer is entitled to do so. Such a
termination does not operate as a forfeiture of any right of a
servant to hold the post, for he has no such right. Obviously
such a termination cannot be a dismissal, removal or reduction
in rank by way of punishment. There are, however, two
important observations of Das, C.J. in Dhingra's case (supra).
One is that if a right exists under a contract or Service Rules to
terminate the service the motive operating on the mind of the
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Government is wholly irrelevant. The other is that if the
termination of service is sought to be founded on misconduct,
negligence, inefficiency or other disqualification, then it is a
punishment and violates Article 311 of the Constitution. The
reasoning why motive is said to be irrelevant is that it inheres in
the state of mind which is not discernible. On the other land, if
termination is founded on misconduct it is objective and is
manifest.
63. No abstract proposition can be laid down that where the
services of a probationer are terminated without saying
anything more in the order of termination than that the services
are terminated it can never amount to a punishment in the facts
and circumstances of the case. If a probationer is discharged on
the ground of misconduct, or inefficiency or for similar reason
without a proper enquiry and without his getting a reasonable
opportunity of showing cause against his discharge it may in a
given case amount to removal from service within the meaning
of Article 311(2) of the Constitution.
64. Before a probationer is confirmed the authority concerned is
under an obligation to consider whether the work of the
probationer is satisfactory or whether he is suitable for the post.
In the absence of any Rules governing a probationer in this
respect the authority may come to the conclusion that on
account of inadequacy for the job or for any temperamental or
other object not involving moral turpitude the probationer is
unsuitable for the job and hence must be discharged. No
punishment is involved, in this. The authority may in some
cases be of the view that the conduct of the probationer may
result in dismissal or removal on an inquiry. But in those cases
the authority may not hold an inquiry and may simply discharge
the probationer with a view to giving him a chance to make
good in other walks of life without a stigma at the time of
termination of probation. If, on the other hand, the probationer
is faced with an enquiry on charges of misconduct or
inefficiency or corruption, and if his services are terminated
without following the provisions of Article 311(2) he can claim
protection. In Gopi Kishore Prasad v. Union of India it was said
that if the Government proceeded against the probationer in the
direct way without casting any aspersion on his honesty or
competence, his discharge would not have the effect of removal
by way of punishment. Instead of taking the easy course the
Government chose the more difficult one of starting proceedings
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against him and branding him as a dishonest and incompetent
officer.
65. The fact of holding an inquiry is not always conclusive. What
is decisive is whether the order is really by way of punishment.
(See State of Orissa v. Ramnarain Das). If there is an enquiry
the facts and circumstances of the case will be looked into in
order to find out whether the order is one of dismissal in
substance, (See Madan Gopal v. State of Punjab). In R. C. Lacy
v. State of Bihar it was held that an order of reversion passed
following an enquiry into the conduct of the probationer in the
circumstances of that case was in the nature of preliminary
inquiry to enable the Government to decide whether disciplinary
action should be taken. A probationer whose terms of service
provided that it could be terminated without any notice and
without any cause being assigned could not claim the protection
of Article 311(2). (See R. C. Banerjee v. Union of India). A
preliminary inquiry to satisfy that there was reason to dispense
with the services of a temporary employee has been held not to
attract Article 311 (See Champaklal G. Shah vs. Union of India).
On the other hand, a statement in the order of termination that
the temporary servant is undesirable has been held to import an
element of punishment (See Jagdish Mitter vs. Union of India).
66. If the facts and circumstances of the case indicate that the
substance of the order is that the termination is by way of
punishment then a probationer is entitled to attract Article 311.
The substance of the order and not the form would be decisive.
(See K.H. Phadnis v. State of Maharashtra)."
10. Learned counsel for the petitioner has next placed
reliance on the decision of Hon'ble Supreme Court in Krishna
Prasad Verma (D) Thr. Lrs. vs. State of Bihar & Ors. [Civil
Appeal No. 8950 of 2011], wherein it was observed as under:-
"8. No doubt, if any judicial officer conducts proceedings in a
manner which would reflect on his reputation or integrity or
there is prima facie material to show reckless misconduct on his
part while discharging his duties, the High Court would be
entitled to initiate disciplinary cases but such material should be
evident from the orders and should also be placed on record
during the course of disciplinary proceedings."
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11. In Krishna Prasad Verma's case (supra) it was further
observed as under:-
"16. We would, however, like to make it clear that we are in no
manner indicating that if a judicial officer passes a wrong order,
then no action is to be taken. In case a judicial officer passes
orders which are against settled legal norms but there is no
allegation of any extraneous influences leading to the passing of
such orders then the appropriate action which the High Court
should take is to record such material on the administrative side
and place it on the service record of the judicial officer
concerned. These matters can be taken into consideration while
considering career progression of the concerned judicial officer.
Once note of the wrong order is taken and they form part of the
service record these can be taken into consideration to deny
selection grade, promotion etc., and in case there is a
continuous flow of wrong or illegal orders then the proper action
would be to compulsorily retire the judicial officer, in accordance
with the Rules. We again reiterate that unless there are clear-
cut allegations of misconduct, extraneous influences,
gratification of any kind etc., disciplinary proceedings should not
be initiated merely on the basis that a wrong order has been
passed by the judicial officer or merely on the ground that the
judicial order is incorrect."
12. Learned counsel for the petitioner has next placed
reliance on the decision of Hon'ble Supreme Court in Union of
India & Ors. vs. Mahaveer C. Singhvi, (2010) 8 SCC 220,
wherein it has been held as under:-
"4.The case made out by the Respondent before the Central
Administrative Tribunal, is that he was deployed to the East Asia
Division of the Ministry of External Affairs. He was, thereafter,
asked to give his preference for allotment of the study of a
compulsory foreign language. The Respondent opted for French,
German, Arabic and Spanish in the said order of preference. In
view of his position in the merit list, the Respondent should
have been allotted German. However, in deviation from the
prevalent procedure whereby the allotments relating to study of
a compulsory foreign language were made on the basis of
gradation in the merit list, the Respondent was informed by a
letter dated 11-1-2001, that he had been allotted Spanish which
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was his last choice. The Respondent thereafter made a
representation against such allotment, but he was directed by
Petitioner No.2 Mr. P.L. Goyal, who was the then Additional
Secretary (Admn.), to remain silent over the issue.
5.x.......x........x
6.x......x.........x
7. According to the respondent, he was thereafter served with
the order of discharge from service dated 13-6-2002, set out
hereinabove. The respondent challenged the said order dated
13-6-2002, before the Central Administrative Tribunal in O.A.
No.2038 of 2002, contending that after the expiry of his period
of probation, he stood confirmed and his services could not
have been terminated without an enquiry in view of the
provisions of Article 311(2) of the Constitution. It was also
contended that the order of 13-6-2002, had been passed in
complete violation of the principles of natural justice as the
respondent was not given a hearing or an opportunity to defend
himself against the allegations which formed the foundation of
the said order. It was also submitted that since the respondent
had protested against the dubious manner in which he had been
illegally deprived of his choice of German as his language
allotment, the authorities who had deliberately altered the rules
of allotment of language for the year 1999 to benefit a certain
candidate, were determined to see that the respondent was
discharged from service.
13. Learned counsel for the petitioner has next placed
reliance on the decision of Hon'ble Supreme Court in State of
Bihar vs. Gopi Kishore Prasad, AIR 1960 SC 689, wherein it
has been held as under:-
"4. In the last mentioned case, if the probationer is discharged
on any one of those grounds without a proper enquiry and
without his getting a reasonable opportunity of showing cause
against his discharge, it will amount to a removal from service
within the meaning of Article 311(2) of the Constitution and
will, therefore, be liable to be struck down.
5. But, if the employer simply terminates the services of a
probationer without holding an enquiry and without giving him a
reasonable chance of showing cause against his removal from
service, probationary civil servant can have no cause of action,
even though the real motive behind the removal from service
may have been that his employer thought him to be unsuitable
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for the post he was temporarily holding, on account of his
misconduct, or inefficiency, or some such cause.
6. It would thus appear that, in the instant case, thought the
respondent was only a probationer, he was discharged from
service really because the Government had, on enquiry, come
to the conclusion, rightly or wrongly, that he was unsuitable for
the post he held on probation. This was clearly by way of
punishment and, therefore, he was entitled to the protection of
Article 311(2) of the Constitution. It was argued on behalf of
the appellant that the respondent, being a mere probationer,
could be discharged without any enquiry into his conduct being
made and his discharge could not mean any punishment to him,
because he had no right to a post. It is true, if the Government
came to the conclusion that the respondent was not a fit and
proper person to hold a post in the public service of the State, it
could discharge him without holding any enquiry into his alleged
misconduct. If the Government proceeded against him in that
direct way, without casting any aspersions on his honesty or
competence, his discharge would not, in law, have the effect of
a removal from service by way of punishment and he would,
therefore, have no grievance to ventilate in any Court. Instead
of taking that easy course, the Government chose the more
difficult one of starting proceedings against him and of branding
him as a dishonest and an incompetent officer. He had the right,
in those circumstances, to insist upon the protection of Article
311(2) of the Constitution. That protection not having been
given to him, he had the right to seek his redress in Court. It
must, therefore, be held that the respondent had been wrongly
deprived of the protection afforded by Article 311(2) of the
Constitution. His removal from the service, therefore, was not in
accordance with the requirements of the Constitution."
14. Learned counsel for the petitioner has next placed
reliance on the decision of Hon'ble Supreme Court in Registrar
General, High Court of Gujarat & Anr. vs. Jayshree
Chamanlal Buddhbhatti, (2013) 16 SCC 59, wherein it has
been held as under:-
"28. These propositions have been reiterated in a number of
judgments thereafter, and the counsel for the respondent
referred to Anoop Jaiswal v. Govt. of India, where this Court held that, the Court can go behind the formal order of discharge (Downloaded on 24/10/2019 at 09:30:57 PM) (13 of 34) [CW-6749/2016] to find out the real cause of action. In that matter, the order of discharge of the probationer on the ground of unsuitability was actually based upon the report/recommendation of the authority concerned indicating commission of an alleged misconduct by the probationer. The Court held that the order was punitive in nature, and in the absence of any proper inquiry it amounted to violation to Article 311(2) of the Constitution of India. At the end of paragraph 13 of the judgment this Court observed as follows: (Anoop Jaiswal case, SCC p.379) "13........Even though the order of discharge may be non- committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311(2) of the Constitution.
29. The propositions in this behalf, as to what constitutes a motive, and what constitutes a foundation for the action were once again crystallized in the judgment of this Court in Chandra Prakash Shahi Vs. State of U.P, where in paragraph 28 and 29 of the judgment of this Court laid down the relevant propositions which are as follows:-
"28. The important principles which are deducible on the concept of "motive" and "foundation", concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that (Downloaded on 24/10/2019 at 09:30:57 PM) (14 of 34) [CW-6749/2016] inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of "motive".
29. "Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry."
30. Our attention was drawn to a judgment of a Bench of three Judges of this Court in Union of India v. Mahaveer C. Singhvi, where a probationer was discharged from his services. The findings were arrived at against him behind his back as recorded in paragraph 46 of the judgment, and although the termination was claimed to be a termination simpliciter, the High Court had found that it was a camouflage for the real intention of the petitioners. This Court upheld the judgment of the High Court, following the law laid down from time to time as aforesaid, and held that "46.....if a finding against a probationer is arrived at behind his back on the basis of the inquiry conducted into the allegations made against him, and if the same formed the foundation of the order of discharge, the same would be bad and liable to be set aside. On the other hand, if no inquiry was held or contemplated, and the allegations were merely a motive for the passing of an order of discharge of a probationer without giving him a hearing, the same would be valid."
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(15 of 34) [CW-6749/2016] The facts of that case were held as not falling under the latter category, and it is submitted that the present case also does not fall under that category.
Consideration of the legal submissions:-
31. Having gone through the salient judgments on the issue in hand, one thing which emerges very clearly is that, if it is a case of deciding the suitability of a probationer, and for that limited purpose any inquiry is conducted, the same cannot be faulted as such. However, if during the course of such an inquiry any allegations are made against the person concerned, which result into a stigma, he ought to be afforded the minimum protection which is contemplated under Article 311(2) of the Constitution of India even though he may be a probationer. The protection is very limited viz. to inform the person concerned about the charges against him, and to give him a reasonable opportunity of being heard.
32. Having noted the facts as they have emerged on the record, can the preliminary inquiry conducted against the respondent in the present case be said to be an innocent one only to assess her suitability? Is it not apparent that certain aspersions were cast on the character of the respondent during the course of the conduct of this inquiry on her suitability? If that was so, was it not expected from a High judicial institution like the High Court to afford her the minimum opportunity to defend herself? In Samsher Singh this Court has observed that the Subordinate Judges are under the care and custody of the High Court. This custody and care certainly requires the High Court to afford the Subordinate Judges the minimum opportunity which is otherwise available to every other civil servant under Article 311(2).
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34. Shashikant Patil was altogether a different case. That was a matter where a full-fledged departmental inquiry was conducted against the respondent. It is true that the inquiry report had exonerated the respondent, and the disciplinary committee had reversed that decision. The High Court on the judicial side had interfered with the decision of the disciplinary committee. It is this decision of the High Court which came to be upturned in this case, and it was in this context that this Court observed:
"24. When such a constitutional function was exercised by the administrative side of the High Court, any judicial review thereon should have been made not only with (Downloaded on 24/10/2019 at 09:30:57 PM) (16 of 34) [CW-6749/2016] great care and circumspection, but confining strictly to the parameters set by this Court....."
The present case can not be said to be one where the High Court on judicial side has erred as in Shashikant Patil in exercising its powers as claimed by the appellants."
15. Learned A.K. Sharma Sr. Advocate appearing for the respondent no.1 has submitted that Kamlesh Kumar Jalia had sought bail in the corruption case registered against him. Bail application filed by the accused was dismissed by the trial court vide order dated 8.1.2015 and thereafter, the bail petition filed by the accused was dismissed by the High Court vide order dated 11.3.2015. Accused moved a second bail application before the trial court after six days of the dismissal of his bail petition by the High Court without there being any change in circumstances. When the bail petition filed by the accused was dismissed by the High Court, at that time, challan had already been presented in the trial court on 23.2.2015 and the prosecution sanction of the accused by the competent authority was not available. Petitioner with a view to create ground to allow the bail application filed by the accused Kamlesh Kumar Jalia, continued adjourning the bail application till 27.4.2015. On 27.4.2015 two orders were passed by the petitioner. In the challan papers order was passed by the petitioner that the case was being adjourned to 8.5.2015 to await prosecution sanction of the accused, whereas, on the same day, bail application filed by the accused was allowed by the petitioner on the ground that the prosecution sanction was not available and the accused was in custody since 27.12.2014. Prosecution sanction of the accused was produced before the trial court on 28.4.2015. This showed that the bail had been granted by the petitioner to the accused in hurry for some extraneous (Downloaded on 24/10/2019 at 09:30:57 PM) (17 of 34) [CW-6749/2016] considerations. Even otherwise, petitioner was required to maintain judicial propriety. Once, the High Court had dismissed the bail petition filed by the accused vide order dated 11.3.2015, petitioner should have restrained himself from dealing with the bail application filed by the accused merely after six days of the dismissal of the bail petition by the High Court. As per the ACRs, petitioner had been advised to improve his judicial work. Although, the inquiry had been initiated against the petitioner on the charges of corruption but the High Court in its wisdom thought of dispensing with the services of the petitioner who was a probationer without being interested in the outcome of the inquiry proceedings. Judicial service required utmost honesty and discipline and the petitioner had failed to maintain judicial discipline and propriety while he was under probation. The impugned order was not stigmatic but was simpliciter order dispensing with the services of the petitioner while on probation.
16. Learned counsel for the respondents has placed reliance on the decision of Hon'ble Supreme Court in High Court of Judicature, Patna vs. Shiveshwar Narayan & Anr, (2011) 15 SCC 317, wherein it has been held as under:-
"11. A judicial officer is not an ordinary government servant; he exercises sovereign judicial power. Like Caesar's wife; he must be above suspicion. The personality of an honest judicial officer is the ultimate guarantee to justice. The judicial officers hold office of great trust and responsibility and their judicial conduct must not be beyond the pale. A slightest dishonesty (monetary, intellectual or institutional) by a judicial officer may have disastrous effect. The repeated complaints of judicial impropriety and questionable integrity against a judicial officer- although not proved to the hilt - may be sufficient basis to disentitle such judicial officer the benefit of extension of retirement age to 60 years.(Downloaded on 24/10/2019 at 09:30:57 PM)
(18 of 34) [CW-6749/2016]
17. Learned counsel for the respondents has next placed reliance on the decision of Hon'ble Supreme Court in State of Madhya Pradesh vs. Kajad, (2001) 7 SCC 673, wherein it has been held as under:-
"8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Misc. case No. 2052 of 2000 on 5-6-2000 has not been denied by the respondent. It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa & and various other judgments."
18. Learned counsel for the respondents has next placed reliance on the decision of Hon'ble Supreme Court in H.F. Sangati & Ors. vs. R.G. High Court of Karnataka & Ors, (2001) 3 SCC 117, wherein it has been held as under:-
"7. ................It is submitted by the learned counsel appearing for K.M. Hanumanthappa, and H.F. Sangati who appeared in- person, that the order of discharge is not an order of discharge simpliciter; it casts a stigma on the appellants in asmuchas it records - "....they are unsuitable to hold the post of Munsifs"
and, therefore, they should have been afforded an opportunity of hearing before passing the impugned orders which having not been done, the impugned order is vitiated for non-compliance with the principles of natural justice. Reliance was placed on a decision of this Court in V.P. Ahuja Vs. State of Punjab.
8. It is well settled by a series of decisions of this Court including the Constitution Bench decision in Parshotam Lal Dhingra v. Union of India and seven-Judge Bench decision in Samsher Singh v. State of Punjab, that services of an appointee to a permanent post on probation can be terminated or dispensed with during or at the end of the period of probation because the appointee does not acquire any right to hold or continue to hold such a post during the period of probation. In Samsher Singh case it was observed that the period of (Downloaded on 24/10/2019 at 09:30:57 PM) (19 of 34) [CW-6749/2016] probation is intended to assess the work of the probationer whether it is satisfactory and whether the appointee is suitable for the post; the competent authority may come to conclusion that the probationer is unsuitable for the job and hence must be discharged on account of inadequacy for the job or for any temperamental or other similar grounds not involving moral turpitude. No punishment is involved in such a situation. Recently, in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre, for Basic Sciences, having reviewed the entire available case - law on the issue, this Court has held that termination of a probationers services, if motivated by certain allegations tentamounting to misconduct but not forming foundation of a simple order of termination cannot be termed punitive and hence would be valid. In Satya Narayan Athya v. High Court of M.P. the petitioner appointed on probation as a Civil Judge and not confirmed was discharged from service in view of the non- satisfactory nature of his service. This Court held that the High Court was justified in discharging the petitioner from service during the period of probation and it was not necessary that there should have been a charge and an enquiry on his conduct since the petitioner was only on probation and it was open to the High Court to consider whether he was suitable for confirmation or should be discharged from service."
19. Learned counsel for the respondents has next placed reliance on the decision of Hon'ble Supreme Court in State of Punjab & Ors. vs. Sukh Raj Bahadur, AIR 1968 SC 1089, wherein it has been held as under:-
"16. On a conspectus of these cases, the following propositions are clear:-
1. The services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would not attract the operation of Article 311 of the Constitution.
2. The circumstances preceding or attendant on the order of termination of service have to be examined in each case, the motive behind it being immaterial.
3. If the order visits the public servant with any evil consequences or casts an aspersion against his character or integrity, it must be considered to be one by way of (Downloaded on 24/10/2019 at 09:30:57 PM) (20 of 34) [CW-6749/2016] punishment, no matter whether he was a mere probationer or a temporary servant.
4. An order of termination of service in unexceptionable form preceded by an enquiry launched by the superior authorities only to ascertain whether the public servant should be retained in service, does not attract the operation of Article 311 of the Constitution.
5. If there be a full-scale departmental enquiry envisaged Article 311 i.e. an Enquiry Officer is appointed, a charge sheet submitted, explanation called for and considered, any order of termination of service made thereafter will attract the operation of the said article.
17. In this case the departmental enquiry did not proceed beyond the stage of submission of a charge sheet followed by the respondent's explanation thereto. The enquiry was not proceeded with; there were no sittings of any Enquiry Officer, no evidence recorded and no conclusion arrived at on the enquiry. In these circumstances, the principle in Madan Gopal's case, (1963) 3 SCR 716 = (AIR 1963 SC 531) or Jagdish Mitter's case, AIR 1964 SC 449 will not be applicable. The case is in line with the decisions of this Court in 1961 - 1 SCR 606 = (AIR 1961 SC 177), Civil Appeal No.590 of 1962, D/- 23-10-
1963 (SC) and Civil Appeal No.1341 of 1966, D/- 13-12-1966 (SC) (supra)."
20. Learned counsel for the respondents has next placed reliance on the decision of Hon'ble Supreme Court in Director Aryabhatta Research Institute of Observational Sciences (ARIES) vs. Devendra Joshi & Ors, (2018) 15 SCC 73, wherein it has been held as under:-
"13. It will be useful to refer to the relevant portion of a judgment of this Court in Radhey Shyam Gupta v. U.P. State Agro Industries Corpn. Ltd., wherein it was held as follows:
"33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the (Downloaded on 24/10/2019 at 09:30:57 PM) (21 of 34) [CW-6749/2016] part of the officer, as stated by Shah, J. (as he then was) in Ram Narayan Das case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is prima facie evidence or material to initiate a regular departmental enquiry. It has been so decided in Champaklal case. The purpose of the preliminary enquiry is not to find out misconduct on the part of the officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental enquiry is started, a charge-memo issued, reply obtained, and an enquiry officer is appointed -- if at that point of time, the enquiry is dropped and a simple notice of termination is passed, the same will not be punitive because the enquiry officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur case and in Benjamin case. In the latter case, the departmental enquiry was stopped because the employer was not sure of establishing the guilt of the employee. In all these cases, the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujarat Steel Tubes case the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.
34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of (Downloaded on 24/10/2019 at 09:30:57 PM) (22 of 34) [CW-6749/2016] the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the employee's conduct but are cases where the employer has virtually accepted the definitive and clear findings of the enquiry officer, which are all arrived at behind the back of the employee
-- even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive in such cases."
21. Learned counsel for the respondents has next placed reliance on the decision of Hon'ble Supreme Court in Radhey Shyam Gupta vs. U.P. State Agro Industries Corpn. Ltd., (1999) 2 SCC 21, wherein it has been held as under:-
"26.If there was any difficulty as to what was "motive" or "foundation" even after Samsher Singh's case, the said doubts, in our opinion, were removed in Gujarat Steel Tubes vs. Gujarat Steel Tubes Mazdoor Sabha again by Krishna Iyer, J. No doubt, it is a labour matter but the distinction so far as what is "motive" or "foundation" is common to labour cases and cases of employees in the government or public sector. The learned Judge again referred to the criticism by Shri Tripathi in this branch of law as to what was "motive" or what was "foundation", a criticism to which reference was made in Samsher Singh's case. The clarification given by the learned Judge is, in our opinion, very instructive. It reads as follows (at page 616-617 para 53-54):
"53. Masters and servants cannot be permitted to play hide and seek with the law of dismissals and the plain and proper criteria are not to be misdirected by terminological cover-ups or by appeal to psychic processes but must be grounded on the substantive reason for the order, whether disclosed or undisclosed. The Court will find out from other proceedings or documents connected with the formal order of termination what the true ground for the termination is. If thus scrutinised, the order has a punitive flavour in cause or consequence, it is dismissal. If it falls short of (Downloaded on 24/10/2019 at 09:30:57 PM) (23 of 34) [CW-6749/2016] this test, it cannot be called a punishment. To put it slightly differently, a termination effected because the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, it is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order or otherwise. Whether, in such a case the grounds are recorded in a different proceedings from the formal order does not detract from its nature. Nor the fact that, after being satisfied of the guilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-ingurious terminology is used.
54. On the contrary, even if there is suspicion of misconduct the master may say that he does not wish to bother about it and may not go into his guilt but may feel like not keeping a man he is not happy with. He may not like to investigate nor take the risk of continuing a dubious servant. Then it is not dismissal but termination simpliciter, if no injurious record of reasons or punitive pecuniary cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge. We need not chase other hypothetical situations here.
27. In other words, it will be a case of motive if the master, after gathering some prima facie facts, does not really wish to go into their truth out besides merely not to continue a dubious employee. The master does not want to decide or direct a decision about the truth of the allegations. But if he conducts an inquiry only for purpose proving the misconduct and the employee is not heard, it is a case where the inquiry is the foundation and the termination will be bad."
22. Learned counsel for the respondents has next placed reliance on the decision of Hon'ble Supreme Court in Rajendra Singh Verma (Dead) through L.Rs vs. Lieutenant Governor of NCT of Delhi & Ors, (2011) 10 SCC 1, wherein it has been held as under:-
(Downloaded on 24/10/2019 at 09:30:57 PM)
(24 of 34) [CW-6749/2016] "189. The argument that material was not supplied on the basis of which "C- Integrity Doubtful" was awarded to the appellants and, therefore, the order of compulsory retirement is liable to be set aside has no substance. Normally and contextually word `material' means substance, matter, stuff, something, materiality, medium, data, facts, information, figures, notes etc. When this Court is examining as to whether there was any `material' before the High Court on the basis of which adverse remarks were recorded in the confidential reports of the appellants, this `material' relates to substance, matter, data, information etc. While considering the case of a judicial officer it is not necessary to limit the `material' only to written complaints or `tangible' evidence pointing finger at the integrity of the judicial officer. Such an evidence may not be forthcoming in such cases.
190. x.....x.......x
191. x.....x......x
192. Normally, the adverse entry reflecting on the integrity would be based on formulations of impressions which would be result of multiple factors simultaneously playing in the mind. Though the perceptions may differ in the very nature of things there is a difficulty nearing an impossibility in subjecting the entries in the confidential rolls to judicial review. Sometimes, if the general reputation of an employee is not good though there may not be any tangible material against him, he may be compulsorily retired in public interest. The duty conferred on the appropriate authority to consider the question of continuance of a judicial officer beyond a particular age is an absolute one. If that authority bona fide forms an opinion that the integrity of a particular officer is doubtful, the correctness of that opinion cannot be challenged before courts. When such a constitutional function is exercised on the administrative side of the High Court, any judicial review thereon should be made only with great care and circumspection and it must be confined strictly to the parameters set by this Court in several reported decisions. When the appropriate authority forms bona fide opinion that compulsory retirement of a judicial officer is in public interest, the writ Court under Article 226 or this Court under Article4 32 would not interfere with the order.
193. x.....x......x
194. From the admitted facts noted earlier it is evident that there was first a report of the Inspecting Judge to the effect that he had received complaints against the appellants (Downloaded on 24/10/2019 at 09:30:57 PM) (25 of 34) [CW-6749/2016] reflecting on their integrity. It would not be correct to presume that the Inspecting Judge had written those remarks in a casual or whimsical manner. It has to be legitimately presumed that the Inspecting Judge, before making such remarks of serious nature, acted responsibly. Thereafter, the Full Court considered the entire issue and endorsed the view of the Inspecting Judge while recording the ACR of the appellants. It is a matter of common knowledge that the complaints which are made against a judicial officer, orally or in writing are dealt with by the Inspecting Judge or the High Court with great caution. Knowing that most of such complaints are frivolous and by disgruntled elements, there is generally a tendency to discard them. However, when the suspicion arises regarding integrity of a judicial officer, whether on the basis of complaints or information received from other sources and a committee is formed to look into the same, as was done in the instant case and the committee undertakes the task by gathering information from various sources as are available to it, on the basis of which a perception about the judicial officer concerned is formed, it would be difficult for the Court either under Article 226 or for this Court under Article 32 to interfere with such an exercise. Such an opinion and impression formed consciously and rationally after the enquiries of the nature mentioned above would definitely constitute material for recording adverse report in respect of an officer. Such an impression is not readily formed but after Court's circumspection, deliberation, etc. and thus it is a case of preponderance of probability for entertaining a doubt about the integrity of an official which is based on substance, matter, information etc. Therefore, the contention that the adverse entries were recorded in the ACR of the appellants without material or basis cannot be upheld and is hereby rejected."
23. Petitioner had joined judicial services by way of direct recruitment as Additional District and Sessions Judge in terms of the order dated 15.7.2013 Annexure-6. At the relevant time, petitioner was posted as Special Judge, Bharatpur. So far as the ACRs of the petitioner for the period from July, 2013 to Part I of year 2014 are concerned, the same are 'Very Good', as is evident from the Annexure-12 placed on record with the additional (Downloaded on 24/10/2019 at 09:30:57 PM) (26 of 34) [CW-6749/2016] affidavit submitted by the respondent no.1. With regard to Part II of year 2014, the inspecting Judge had given remarks to the petitioner as 'Good'. It was further stated that the petitioner required to improve his judicial work. It was also pointed out by the inspecting Judge that she had received information that an inquiry had been initiated against the petitioner under Section 16 of CCA Rules. The Administrative Judge wrote as an advisory remark that Officer should concentrate on judicial work and improve quality. The Chief Justice concurred with the remarks given by the inspecting Judge and the Administrative Judge. The said remarks were duly conveyed to the petitioner vide Annexure- 12 dated 1.9.2015.
24. So far as the judicial career of the petitioner is concerned, he was on probation and controversy arose with regard to his passing of bail order dated 27.4.2015 in a corruption case. Bail application filed by the accused was dismissed by the trial court vide order dated 8.1.2015 and bail petition filed by the accused before this Court was dismissed vide order dated 11.3.2015. After few days accused moved a second bail application before the trial court and the said bail application came up for hearing before the petitioner. The bail application was adjourned from time to time, inter alia, for production of prosecution sanction order of the accused by the prosecution. However, petitioner proceeded to grant bail to the accused vide order dated 27.4.2015, although, on the same day, petitioner had adjourned the main file for 8.5.2015 to await/production of prosecution sanction order of the accused. Petitioner was aware at the time of passing of the order dated 27.4.2015 that the order was being passed in second bail application filed by the accused. (Downloaded on 24/10/2019 at 09:30:57 PM)
(27 of 34) [CW-6749/2016] The relevant portion of the order dated 27.4.2015 reads as under:-
"The admitted position which springs out from the file is that the accused was arrested on 28-12-14 and the charge sheet against the accused was filed on 23-2-2015. However, the required prosecution sanction was not filed and a letter to this effect was written to the concerned competent authority on 18- 2-2015. It is not in dispute that the corruption is like cancer in the society which is eroding the society. However, the Govt. is required to act swiftly but it appears that the meeting for discussion was held on 23-3-2015 and thereafter the file has been sent to State Govt for appropriate decision but no decision has been taken till date. Admittedly the accused is behind the bars since 28-12-14 and the trial against the accused solely depends on the decision taken by the Govt with regard to the prosecution sanction. In absence of prosecution sanction, the trial cannot begun and the accused is in Jail for four months and the trial would take some time and without commenting on the merits of the case as this would adversely effect either parties, this Court is inclined to gave the benefit of bail to the accused."
25. Thus, while granting bail to the accused, petitioner took into consideration the fact that the accused was arrested on 28.12.2014 and the charge-sheet had been filed on 23.2.2015. However, prosecution sanction order of the accused had not been received and trial could not begin till the prosecution sanction order was received. A perusal of the bail order also reveals that it was argued by the counsel for the accused that the co-accused Alimuddin had been granted bail by this Court on 27.4.2015.
26. The material question would be as to whether the petitioner was aware of the fact that the bail petition filed by the accused Kamlesh Kumar Jalia had been dismissed by the High Court. In this regard, reply filed by the petitioner with regard to the explanation sought from him by this Court with regard to the (Downloaded on 24/10/2019 at 09:30:57 PM) (28 of 34) [CW-6749/2016] bail order passed by him is relevant. The relevant portion of the explanation submitted by the petitioner reads as under:-
"I was also conscious about the fact that the first bail application of the accused Kamlesh Kumar Jaila was dismissed by my predecessor Shri Rajendra Singh by order dated 8-1- 2015. It appears from the memo of the second bail application of accused Kamlesh Kumar Jalia that against this order (8-1- 2015) the accused Kamlesh Kumar Jalia preferred S.B. Criminal Bail Application No. 2369/2015 before Hon'ble High Court and the same was dismissed by order dated 11-3-2015. The fact of dismissal of the bail application by Hon'ble High Court was not argued by either of the ld. Counsel nor the order dated 11-3-
2015 was produced at the time of arguments. However, the fact of dismissal came to my notice only while I was dictating the bail order dated 27-4-2015 from the memo of second bail application. The question came to my mind that whether, I should exercise my discretion or simpliciter dismiss the second bail application solely on the ground that the Hon'ble High Court has dismissed the bail by order dated 11-3-2015. As stated earlier, the said order was not before me and therefore, I thought it proper that there is definitely change in circumstances from 11-3-2015 as the period of the accused in custody is nearing four months and also 48 days have passed from 11-3-15 to 27-4-15 and in absence of prosecution sanction, (more so, when prosecution sanction will come is not know to anyone) the trial cannot start and the other two accused are already bailed out. I hence, exercised my judicial discretion to enlarge the accused on bail.
27. Thus, the fact that the bail petition by the accused had been dismissed by the High Court was in the notice of the petitioner when he had passed the order dated 27.4.2015 granting bail to the accused. It is note-worthy that challan had already been presented in the court when the bail petition filed by the accused was dismissed by the High Court on 11.3.2015. At that stage also prosecution sanction order of the accused had not been received. Thus, there was no change in circumstance warranting interference by the petitioner while granting bail to the accused on (Downloaded on 24/10/2019 at 09:30:57 PM) (29 of 34) [CW-6749/2016] second bail application after about 40 days of the dismissal of his bail petition by this Court.
28. The accused had sought bail in a corruption case instituted against him and his co-accused. It was a trap case. As per the prosecution story, all the accused in collusion with each other had demanded Rs.30,00,000/- as bribe from the complainant to extend time to deposit the balance amount and with the assurance that penalty and interest would be waived and encroachment would be removed. In a trap organized by Anti Corruption Bureau, on the basis of complaint moved by the complainant, accused Kamlesh Kumar Jalia and Alimuddin were caught red handed while accepting bribe to the tune of Rs.15,00,000/-. At that time, accused Irfan was also sitting in the garden. As per the prosecution story, Rs. 5,00,000/- were received by accused Kamlesh Kumar Jalia and accused Alimuddin had taken Rs.10,00,000/- from the complainant. Thus, the allegations against the accused Kamlesh Kumar Jalia were serious as he had been caught red handed in a trap organized by the Anti Corruption Bureau accepting Rs.5,00,000/- by way of bribe money. Further, the bail petition filed by the accused had been dismissed by this Court. In such a situation, the petitioner was not justified in allowing the bail petition filed by the accused. Be that as it may, it shows that the petitioner had failed to maintain judicial discipline and propriety while discharging his duties.
29. It is not material as to whether the prosecution had sought cancellation of bail granted to the accused or not. The complainant or the State may not have bothered to seek cancellation of bail granted to the accused. Although, there was no written complaint against the petitioner with regard to grant of (Downloaded on 24/10/2019 at 09:30:57 PM) (30 of 34) [CW-6749/2016] bail to the accused but there must have been some oral complaint against the petitioner which resulted in seeking his explanation by the High Court with regard to grant of bail by him to the accused.
30. So far as judicial service is concerned, judicial officer is required to maintain judicial discipline and propriety and that is why initially an officer is kept on probation to evaluate his conduct during the said period.
31. The matter came to the notice of this Court that the bail order passed by the petitioner on 27.4.2015 had not been passed for rightful reasons/consideration and due to this reason, explanation of the petitioner was called. The explanation furnished by the petitioner was not found satisfactory and due to this reason, charge-sheet was issued to the petitioner and charges were framed against the petitioner. Inquiry Judge was nominated. The question, then came up before this Court with regard to confirmation of the petitioner as he was still under probation. The High Judiciary Committee comprising of five Judges in its meeting dated 24.11.2015 after examining the entire service record of the petitioner were of the unanimous opinion that the services of the petitioner were liable to be dispensed with. The report of the Committee was placed before the Full Court in the meeting dated 20.1.2016 and the same was approved and it was resolved not to recommend the petitioner for confirmation in Rajasthan Judicial Services. Thereafter, the services of the petitioner were dispensed with vide impugned order dated 27.1.2016. Before the Committee as well as the Full Court, the entire service record of the petitioner was available. The ACRs of the petitioner were also available. In the year 2014-II, the Inspecting Judge had opined that the petitioner required to improve his judicial work and the (Downloaded on 24/10/2019 at 09:30:57 PM) (31 of 34) [CW-6749/2016] Administrative Judge had made an advisory remark that the petitioner was required to concentrate on judicial work and improve quality. The said remarks were duly concurred by the Chief Justice. The fact that the charge-sheet had been issued against the petitioner and the charges had been framed against him relating to corruption charges were also available before the Committee as well as the Full Court.
32. At the stage of confirmation of a probationer, the High Court was required to evaluate as to whether petitioner would prove to be a good judicial officer. Judges discharge functions while exercising sovereign judicial power of the State. It goes beyond saying that the honesty and integrity of a judicial officer is expected to be beyond doubt. The said fact should be reflected in the overall reputation of the officer. An officer whose integrity is doubtful, has no place to continue in judicial service. The job of the Inspecting Judge is to keep a watch on the judicial officers working in the district. Sometimes, the Inspecting Judge receives written complaints against the officers working in the district and sometimes oral complaints are also received by the Inspecting Judge against the judicial officers. The said complaints are dealt with utmost care and caution and no action is taken against the officers on frivolous complaints. However, when suspicion arises with regard to integrity of a judicial officer whether on the basis of complaints or information received from other sources, the concerned Committee looks into the same and forms a perception about the concerned judicial officer, then it would not be appropriate for this Court to interfere while exercising jurisdiction under Article 226 of the Constitution of India. The Committee after considering the material available before it, forms an opinion and (Downloaded on 24/10/2019 at 09:30:57 PM) (32 of 34) [CW-6749/2016] the same is put up before the Full Court and where the opinion of the Committee is approved by the Full Court, then the said opinion cannot be said to be arbitrary or irrational to shock the conscious of this Court warranting or justifying interference. While forming assessment about the judicial officer many factors play a vital and important role.
33. In the present case, charges were framed against the petitioner with regard to allegations of corruption while granting bail vide order dated 27.4.2015 to the accused. The High Court at the time of considering the case of the petitioner for confirmation must have come to the conclusion that it was not interested to ascertain the truth of allegations levelled against the petitioner and opted to pass a simpliciter order of dispensing with the services of the petitioner. The Full Court had also taken into consideration the remarks of the Inspecting Judge as well as the Administrative Judge with regard to the period 2014-II. The High Court in its wisdom came to the conclusion that the services of the petitioner, who was on a probation, did not require to be confirmed as he was unlikely to prove to be a good judicial officer. The impugned order is a simpliciter order and cannot be termed as punitive. The issuance of charge-sheet against the petitioner was not the foundation of passing of the impugned order dated 27.1.2016. Rather, the impugned order had been passed by keeping in view the overall service record of the petitioner.
34. Learned Senior Counsel for the petitioner has cited judgments in support of his case. We have carefully gone through the judgments relied upon by the learned Senior Counsel appearing for the petitioner. There is no quarrel with the preposition of law that where the foundation of the dismissal (Downloaded on 24/10/2019 at 09:30:57 PM) (33 of 34) [CW-6749/2016] order, though passed in simpliciter, is allegation of misconduct against the official, then an inquiry has to be conducted against the official to enable him to prove his innocence. However, where the foundation of the simplicter order of termination is not the misconduct, then the same does not require any interference.
35. In the present case, the service record of the petitioner available with the Committee as well as the High Court was merely a motive to assess the service record of the petitioner with a view to decide whether he was to be confirmed in service. It has been held by the Hon'ble Supreme Court in Director Aryabhatta Research Institute of Observational Sciences's case (supra) that even in a case where a regular departmental inquiry has been started and charge memo has been issued and reply has been received and inquiry officer has been appointed, and if at that time, inquiry is dropped and a simple notice of termination is passed, the same would not be punitive because the inquiry officer has not recorded evidence nor given any finding on the charges. In the present case also, though charges had been framed against the petitioner and Inquiry Judge had been nominated but the Inquiry Judge had not recorded any evidence nor had given any finding on charges framed against the petitioner and thus, the inquiry Judge had not reached to a logical conclusion. The High Court in its wisdom thought of dispensing with the services of the petitioner by passing a simpliciter order without proceeding with the inquiry. After carefully considering the facts and circumstances of the case, we are of the opinion that the judgments relied upon by the learned counsel for the petitioner fail to advance the case of the petitioner.
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(34 of 34) [CW-6749/2016]
36. So far as challenge to the charge-sheet has been made by the petitioner, the same would be merely academic because the inquiry was dropped against the petitioner vide order dated 5.5.2016, as the services of the petitioner had already been dispensed with. It was further ordered that in case there were any change in circumstances, the inquiry would be re-opened. But at that stage, since the services of the petitioner has been dispensed with, there was no purpose to proceed with the departmental inquiry any further.
37. Keeping in view the totality of circumstances in mind, we are of the considered opinion that the impugned order whereby the services of the petitioner were dispensed with, calls for no interference and the present writ petition deserves to be dismissed.
Accordingly, this writ petition is dismissed.
(PRAKASH GUPTA)J. (SABINA)J.
Anil Makwana
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