Gujarat High Court
Mayuri Himmatlal Panchal vs High Court Of Gujarat Through Registrar ... on 13 August, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5295 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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MAYURI HIMMATLAL PANCHAL
Versus
HIGH COURT OF GUJARAT THROUGH REGISTRAR GENERAL & ANR.
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Appearance:
MR SANDIP H MUNJYASARA(10781) for the Petitioner(s) No. 1
LAW OFFICER BRANCH(420) for the Respondent(s) No. 1
MR SHALIN MEHTA, SR. ADV. with MR HEMANG M SHAH(5399) for the
Respondent(s) No. 1
MS HETAL G PATEL, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 2
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 13/08/2024
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL) Page 1 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined
1. By means of this writ petition the petitioner has sought for quashing of the order dated 11.03.2022 passed by the respondent No.2, the State of Gujarat on the recommendation of the respondent No.1, namely the High Court of Gujarat in passing a simpliciter order of discharge of the petitioner from services with immediate effect, considering her unsuitability for the post she held, i.e. Civil Judge (J.D.).
2. By means of an amendment brought under the order of this Court dated 16.12.2022, the petitioner had further sought the relief to hold and declare the Rule 14(5) of the Rules' 2005, namely the Gujarat State Judicial Service Rules' 2005 being ultra vires to Articles 14,16,19 and 21 of the Constitution of India and the alternate prayer of interpretation of Rule 14(5) of the Rules' 2005 to hold and declare that the period of probation mentioned in Rule 14(5) does not include extended period of probation. It was prayed that an interpretation is to be made to the 'delay' mentioned in Rule 14(5) of the Rules' 2005 so as to declare it to be reasonable, justifiable and bona fide.
3. The petitioner has also prayed a relief of mandamus holding and declaring that the petitioner is deemed to be confirmed in service with effect from 05.09.2015 or 05.09.2017. It is prayed that a declaration in the nature of mandamus be made in the alternate, that the petitioner cannot be treated as a deemed probationer while deciding to discharge the petitioner from service and further that the petitioner is entitled to be reinstated in service with all consequential benefits including Page 2 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined continuity of service, seniority, promotion, full backwages with interest at the prevailing bank rate.
4. Brief facts relevant to decide the controversy at hand are that the petitioner was selected for the post of Civil Judge(JD) vide Notification dated 07.05.2013 and she was appointed as 3rd Additional Civil Judge at Gandhidham on 21.08.2013. After the appointment, the probation period of the petitioner was extended from time to time and she was kept on probation until 11.03.2022, when her services had been discharged simpliciter on the ground of being unsatisfactory.
5. The contention of the learned counsel for the petitioner is that the petitioner has been illegally discharged from service after a period of 8 ½ years of service, on the ground of unsuitability for the post she held, though there was no material before the competent authority, namely the High Court and the State Government to hold the petitioner as unsuitable. It was urged that the factors or material to hold the petitioner unsuitable could be Assessment of performance and disposal, Annual Confidential Report and the complaints namely, Administrative or Vigilance complaints and the Departmental Inquiry, if any.
6. In the case of the petitioner that the assessment of the work done by the petitioner has been carried out from the year 2014 to 2018 and even from the statement showing the details as regards Grading, Adverse remarks, Vigilance Complaints, Departmental inquiry and Administrative complaint, appended with the counter affidavit of the Page 3 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined respondent High Court, it can be seen that the Assessment of Quarterly disposal of the petitioner had been "Excellent" and "Outstanding" apart from being "Good" and "Very Good"
mostly. The Quarterly Assessment disposal report indicates that the petitioner had shown remarkable improvement/ excellence in the disposal of cases and had secured the remarks as "Outstanding" throughout in the entire year 2018, whereas it was "Outstanding" and "Excellent" in the year 2019. It is stated that for recording the performance of the petitioner being unsatisfactory by the High Court, the assessment of disposal of the year 2016 could not have been relied where there were remarks as "Poor", "Adequate" and "Very good", rather the assessment of disposal in the four quarters of the year 2016 would indicate that the petitioner had shown remarkable improvement in achieving the remarks from "Poor" to "Very Good' in the same year. In the Annual Confidential Report of the petitioner, the remarks cannot be said to be adversary rather they have to be treated as advisory. The average of the Annual Confidential Report from 2014 to 2018 were taken into consideration, whereas ACR after 2018 were not filled by the concerned Principal District Judges. There was, thus, no ACR for the year 2018 to record any dissatisfaction about the work and conduct of the petitioner.
7. It is submitted that on the representation dated 13.03.2018 submitted by the petitioner to the Registrar General, High Court against the adverse remarks made by the Principal Page 4 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined District Judge, Surendranagar for the period from 06.09.2017 till 05.12.2017, for the Quarter ending the year 2017, by the letter dated 09.04.2018 sent by the Registrar (Administration), High Court of Gujarat, it was communicated that as per the direction of the then Hon'ble the Chief Justice and Judges remarks made in the Annual Confidential Report for the aforesaid period shall be treated as Advisory and not as Adverse.
8. It is placed before us that a Memorandum of Chargesheet dated 16.03.2017 has been served upon the petitioner for initiation of departmental inquiry with the Article of charges, namely Departmental Inquiry No. 10 of 2016. A perusal of the Article of Charges served upon the petitioner along with the Chargesheet dated 16.03.2017 indicates that the charges were with regard to the judicial performance of the petitioner and misappropriation of Government money by the Additional Registrar, District Court, Vadodara, in connivance with the petitioner, who had passed judicial order on 22.02.2016 altering the fine imposed on 19.12.2015, after more than a period two months of passing of the original order in 38 criminal cases with a further intent to save the then Nazir, District Court.
9. It is submitted by the learned counsel for the petitioner that the Departmental Inquiry No.10 of 2016 was pending and without taking any final decision on the inquiry report submitted by the inquiry officer to bring the Departmental Inquiry to its logical conclusion, the petitioner had been Page 5 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined illegally discharged by a simpliciter order. This fact itself proves that the impugned order of discharge is punitive, inasmuch as, once the inquiry officer had concluded the inquiry and submitted its report regarding the finding of guilt of the petitioner, the petitioner could not have been dismissed from service without issuance of show cause notice by serving the entire inquiry report on the proposed punishment. The inquiry, thus, stands vitiated and the disciplinary authority instead of taking any decision in the departmental inquiry, has illegally simpliciter discharged the petitioner from service treating her on probation after rendering services for the period of 8 ½ years. For this act of the appointing authority, the order of simpliciter discharge is to be held as punitive.
10. Further, after 8 ½ years of rendering services, when the petitioner became over-age, she has been discharged simpliciter from service with the remark "unsatisfactory for the post held" making the discharge order stigmatic. The impugned order of discharge though has been worded as "simpliciter" but, in fact, it is an order of termination of services of the petitioner without bringing the departmental inquiry to its logical conclusion. It was submitted that for this reason alone, the order of discharge simpliciter has to be held perverse.
11. The submission is that from the statement referred to as above and brought on record in the counter affidavit, it seems that three administrative complaints which were received behind the back of the petitioner, were the basis of Page 6 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined simpliciter discharge of the petitioner from service, one of such complaints is on an application dated 27.05.2019 filed along with the affidavit dated 06.08.2019 of one Mr.Nitin Pasabhai Patel of Mehsana District alleging harassment by the petitioner and threat given to him that he would be implicated in false cases by the petitioner, if he did not give divorce to his wife and marry the petitioner. Another complaint was on an application dated 09.03.2020 of one Mr. Mahendra Bagadiya, Superintendent of Police, Surendranagar making allegations against the petitioner of filing a complaint against Mr. Nitin Patel with malice; frequently calling the Investigating Officer, Deputy Superintendent of Police, Limbdi and P.I., L.C.B., Branch and the applicant, personally and telephonically asking them to collect evidence against the complainant, namely Mr. Nitin Patel and thereby interfering in the investigating procedure; showing animosity against the Investigating Officer and other police officers by further harassing them and finding faults with in each and every judicial proceedings to pressurize them to get the work done as per her will.
12. The third complaint is the confidential letters dated 08.06.2020 and 12.06.2020 respectively; of the Principal District Judge, Surendranagar forwarding the confidential letters of another judicial officer posted as 3 rd Additional Sessions Judge, Limbdi regarding the conduct of the petitioner with regard to the non-compliance of the orders passed by the 3rd Additional Sessions Judge, Limbdi and the letter dated Page 7 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined 18.06.2020 of the Principal District Judge, Surendranagar forwarding a confidential letter dated 12.06.2020 of the Deputy Inspector General of Police, Rajkot and confidential letter dated 12.06.2020 of the Superintendent of Police, Surendranagar along with its enclosures.
13. Learned counsel for the petitioner would submit that none of the above noted three complaints have been inquired into and no opportunity has been granted to the petitioner on the allegations made therein. The result is that the departmental inquiry which was initiated on the reports of the Principal District Judge, Vadodara dated 26.02.2016 and 02.03.2016, has not been brought to its logical conclusion and three administrative complaints making allegations of misconduct against the petitioner have also not been inquired into. However, these complaints were not only the motive of the dismissal of the petitioner from service, but real foundation for the order of discharge simpliciter. These facts would make the order impugned of discharge simpliciter stigmatic and punitive and, thus, making it liable to be quashed.
14. In support of these submissions, reliance is placed on the decisions of the Apex Court in the case of Samsher Singh vs. State of Punjab and another 1, that if the termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it is a punishment and simpliciter order of discharge would fall foul of Article 311(2) of the Constitution. If the termination is founded on 1 (1974) 2 SCC 832 Page 8 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined misconduct, its objective is manifest, the Court would not go behind the reasons or the motive operating on the minds of the competent authority as it inheres in the state of mind which is not discernible. It was urged that if the probationer is faced with an inquiry on the charge of misconduct or inefficiency or corruption and if his services are terminated without following the provisions of Article 311(2), he can claim protection.
15. In the instant case, though the petitioner had participated in the inquiry and the inquiry report had been submitted by the concerned inquiry officer, but the services of the petitioner has been terminated as a simpliciter discharge, without giving the second show cause notice seeking explanation by supplying the inquiry report. The termination of services of the petitioner on the ground of being "unsatisfactory for the post held" by her, thus, violates Article 311(2) of the Constitution and is vitiated as such.
16. With reference to the decision of the Apex Court in Anoop Jaiswal vs. Government of India and another 2, it was argued that when a full scale departmental inquiry envisaged by Article 311(2) of the Constitution is made, with the appointment of inquiry officer, submission of chargesheet and explanation called for and considered, any termination made, thereafter, will attract the provision of Article 311(2). The employer has to follow the requirement of Article 311(2) for 2 (1984) 2 SCC 369.
Page 9 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined termination or else the order of discharge should fall to the ground, being foul of Article 311(2) of the Constitution.
17. With the aid of this judgement, it was argued that since in the instant case, an inquiry into the allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311(2), inasmuch as, the inquiry report has not been supplied to the petitioner nor any show cause notice had been served calling upon the petitioner to submit explanation on the question of proposed punishment by the disciplinary authority on the inquiry report. The submission is that after receipt of the inquiry report, it was incumbent upon the respondent No.2 High Court to serve the inquiry report along with the show cause notice to enable the petitioner to submit her explanation as to why the inquiry report be not accepted or it is vitiated. The settled procedure of conclusion of the departmental inquiry for imposing punishment appropriate to the charges levelled and proved has not been followed. The order of simpliciter discharge, though innocuously worded, but on the lifting of the veil, it is proved that the inquiry report was the foundation of passing the order of discharge. The alleged act of misconduct sought to be proved by the inquiry officer in the inquiry report, in the regular departmental inquiry conducted against the petitioner, being foundation of the order of simpliciter discharge it has to be held invalid.
Page 10 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined
18. The decision of the Apex Court in the case of Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others3, has been pressed into service to substantiate the said submission.
19. Reference has been made to the decision of the Apex Court in the case of S. Sukhbans Singh vs. State of Punjab 4 to submit that a probationer cannot be punished for misconduct without complying with the requirement of Article 311(2). The circumstances of the instant case, clearly show that the action of the respondent no.2, High Court was mala fide and the discharge, though termed as simpliciter, was by way of punishment for the allegation of misconduct without complying with the provisions of Article 311(2). The order of termination is, therefore, illegal. It was, thus, argued that even in the case of an order of simpliciter discharge, the Court can lift the veil to see as to what transpired to the employer to dispense with the services of a probationer. If the circumstances leading to the order of termination prove the substance of the order being by way of punishment, then a probationer is entitled to the benefit of Article 311(2). The substance of the order and not the form would be decisive.
20. The impugned order of termination of the services of the petitioner records that upon recommendation made by the High Court, considering the unsuitability of the petitioner for the post she held, the Governor of Gujarat discharged the petitioner from service with immediate effect. Mere reading of 3 (1999) 3 SCC 60 4 1962 SCC OnLine SC 96 Page 11 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined the order indicates that the petitioner has been held unsuitable for the job, which statement itself casts stigma and the termination order cannot be held to be a simpliciter order of discharge. Moreover, attending circumstances preceding the order of termination of service of the petitioner once examined, it is evident that the petitioner has been illegally terminated after a period of 8 ½ years of service, treating her as probationer by a simpliciter order of discharge, though the termination order is founded on the allegations of misconduct alleged to have been proved in the inquiry report relied by the Disciplinary Authority behind the back of the petitioner and also on the allegations in the three complaints, on receipt whereupon, no show cause notice or explanation has been called from the petitioner.
21. Reference has been made to the Division Bench judgement of this Court in the case of Khemraj Hakraji Dayma and others vs. Registrar General of the High Court of Gujarat and another5 connected with other matters to submit that only in a case of termination simpliciter not attributing to any misconduct, the termination order of the probationer may be passed terminating the probation of the employee. However, if the allegations of misconduct are inquired into and proved, the termination cannot be said to be termination simpliciter.
22. Even otherwise, the petitioner cannot be said to be probationer, inasmuch as, under Rule 14(1) of the Rules' 2005, all appointments by direct recruitment shall be on 5 2015 SCC OnLine GUJ 5599 Page 12 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined probation initially only for the period of two years. Sub-rule (3) provides that the period of probation may be extended by the appointing authority, for reasons to be recorded in writing, for the period of probation specified in sub-rule(1) of Rule 14, which is further for two years only.
23. Further, sub-rule(4) of Rule 14 mandates the appointing authority to consider the suitability of the person appointed on probation, either at the end of the period of probation(initially) or the extended period of probation (after four years) so as to decide whether he is suitable to hold the post to which he was appointed and issue an order declaring him to have satisfactorily completed the period of probation. Such an order shall have to be given effect from the date of expiry of the period of probation including the extended period, if any.
24. Sub-rule (4)(ii) further mandates that if the appointing authority on consideration of suitability of a probationer considers him as not suitable to hold the post, it shall, by order, discharge him from services. The submission is that the conjoint reading of sub-rule (1),(3),(4)(i) and (ii) of Rule 14 of the Rules' 2005, makes it clear that the appointing authority is mandated to consider the suitability of a probationer on completing initial probation period of two years or extended period of two years, if any. In any case, on completion of the initial period of probation or the extended period, as the case may be, it was incumbent upon the appointing authority to consider the suitability of the probationer appointed under Page 13 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined sub-rule(1) of Rule 14 so as to take the decision whether to confirm him in service or discharge from service at the end of the probation period.
25. It is vehemently argued by the learned counsel for the petitioner that the assessment of suitability of the person appointed on probation is the mandatory requirement of the rule at the end of the initial or extended period of probation. The appointing authority cannot postpone its action to continue the person so appointed on probation. In the instant case, in utter violation of the said requirement of the rules governing the service condition of the petitioner after appointment, the respondent High Court has kept on extending the period of probation for a period of 8 ½ years. There is no assessment of suitability of the petitioner during the said period. The petitioner cannot, therefore, be said to be a probationer and at the end of the probation period with the extensions granted by the appointing authority after four years from the date of appointment, the petitioner shall be held to be a confirmed or permanent member of the judicial service. The appointing authority was, thus, denuded of the power to terminate the services of the petitioner in the garb of being a probationer by passing the simpliciter order of discharge.
26. It was vehemently argued that the appointing authority had no power to extend the period of probation beyond four years, which is the maximum period of probation prescribed in the Rules' 2005. Since the petitioner has not been held to Page 14 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined be unsuitable for the judicial service after completion of four years of probation, she was bound to be confirmed in service and being a confirmed employee, to terminate the services of such an employee, the provisions of Article 311(2) were required to be strictly followed. It was urged that the extension of the period of probation or the services of the petitioner on probation beyond four years was an illegal exercise on the part of the respondent High Court under the Rules' 2005 and, as such, it is a case of deemed confirmation of services of the petitioner.
27. Reliance is placed on the decision of the Apex Court in the case of State of Punjab vs. Dharam Singh 6 to submit that when the first appointment is made on probation for a specific period and the employee is allowed to continue in the post after the expiry of the period without any specific order of confirmation, after completion of the maximum period of probation, it is permissible to draw the inference that the employee allowed to continue in the post on completion of maximum period of probation has been confirmed in the post by implication.
28. It was submitted that there are two choices before the appointing authority either, to (a) extend the period of probation, provided the total period of probation including extension would not exceed four years (in the instant case) or;
(b) dispense with the services of the probationer if his work or conduct during the period of probation was unsatisfactory 6 AIR 1968 SC 1210 Page 15 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined or confirm him in his appointment. The appointing authority could have passed one of these orders in respect of the petitioner herein on completion of four years of maximum period of probation, but the appointing authority had allowed the petitioner to continue to hold the post without passing any order in writing as per sub-rule(4) of Rule 14. In absence of such an order, it should be presumed by necessary implication, that for the mere fact of continuance of the petitioner in service for 8 ½ years that the services of the petitioner stood confirmed.
29. Reference has been made to the decision of the Apex Court in the case of Shiv Kumar Sharma vs. Haryana State Electricity Board, Chandigarh and others7, to submit that the Apex Court has deprecated the practice of continuation of a probationer by not taking a decision on a need for confirmation even though substantive vacancies were available and observed that whether an employee should be confirmed or not, cannot be depended upon sweet will and pleasure of the employer. The employer is bound to confirm a probationer in service on successful completion of probation period, if he is found to be suitable, but cannot continue a person on probation without taking any decision. The act of the respondent High Court in keeping the petitioner on probation for the period of 8 ½ years is a proven case of arbitrariness, in the facts and circumstances of the present case.
7 1988(Supp) SCC 669 Page 16 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined
30. Reliance is further placed on the decision of the Apex Court in the case of S. Sukhbans Singh4(supra) to submit that the probationer who continues to be such without being removed from service after the expiry of the period of probation has a legal right to be confirmed or to be treated as if he were confirmed.
31. It was further argued that sub-rule (5) of Rule 14 which provides that a person shall not be considered to have satisfactorily completed the period of probation unless a specific order to that effect is passed, has to be interpreted by a harmonious reading of the entire Rule 14 to understand the aims and objects of the Rules that on completion of the period of probation including the extended period, which is the total period of four years, it was incumbent upon the appointing authority to assess the suitability of a person appointed on probation. The sub-Rule(5) has to be read in consonance with the sub-rule(3) of Rule 14 and the second part of the sub-rule (5) that any delay in passing an order of confirmation shall not entitle the person to be deemed to have satisfactorily completed the period of probation, has to be read and understood, accordingly.
32. A conjoint reading of sub-rules to Rule 14 makes it clear that:
(a) it was incumbent upon the appointing authority to assess the suitability of a probationer on completion of initial or extended period of probation;(b) a person appointed to the service by direct recruitment cannot continue on probation Page 17 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined beyond the maximum period of four years; (c) any continuation after the initial period of two years of probation upto the maximum period of probation for four years from the date of appointment, can only be for the reasons recorded in writing by the appointing authority; (d) it is not left to the sweet will of the appointing authority to continue a person appointed on probation indefinitely. In any case, the requirement of taking a decision to confirm a probationer in service on satisfactory completion of the period of probation by assessment of suitability or discharge from service in case he is found to be unsuitable as a result of such assessment, is the mandatory requirement of the Rule 14 of the Rules' 2005.
33. In the instant case, the procedure prescribed in the rule for continuation of the petitioner on probation has not been followed. There has been no assessment of suitability of the petitioner to hold the post to which she has been appointed, for the period of 8 ½ years of continuance in service. The appointing authority had no power to extend the period of probation beyond four years, when maximum period is provided in the rules itself. The appointing authority was required to take an affirmative action on completion of the probation period in view of the clear language of sub-rules (4) and (5) of the Rule 14 of the Rule, 2005. The language employed in sub-rule (5) does not give power to the appointing authority to extend the period of probation in infinity. The power conferred upon the appointing authority to decide on the question of confirmation of maximum period Page 18 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined of probation under Rule 14 has not been exercised strictly in accordance with the rules, the continuance of the petitioner beyond the period of four years on probation without assessment of suitability to the post held by her, had resulted in implied or deemed confirmation of the petitioner in service for the inaction on the part of the appointing authority in taking a decision on the suitability of the petitioner to hold the post on which she was appointed. Thus, it is evident that the petitioner has been continued in service for 8 ½ years in service by illegally treating her as a probationer. The action of the appointing authority in passing the order of simpliciter discharge treating the petitioner on probation, suffers from manifest arbitrariness and violates Article 14 of the Constitution of India, for the above reasons.
34. Reliance is placed on the decision of the Apex Court in the case of State of Uttar Pradesh vs. Batuk Deo Patil Tripathi and another8 to submit that the administrative power vested in a body of person carries with it the power to regulate the manner of doing it, subject, however, to ensuring that the essence of the power is not thereby diluted. An administrative power can be exercised in accordance with the procedure prescribed under the Rules, inasmuch as, the administrative power comes with a duty to do a particular thing in a particular manner. The administrative authority cannot dilute the procedure prescribed in the statutory rules.
8 (1978) 2 SCC 102 Page 19 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined
35. Learned counsel for the petitioner has pressed the prayer to declare the Rule 15(5) of the Rules 2005 ultra vires the Articles 14, 16,19 and 21 of the Constitution of India, with the alternative prayer that the Court may interpret the Rule 14(5) of the Rules' 2005 in such a manner that a declaration be made that the period of probation mentioned in Rule 14(5) does not include extended period of probation or that the "delay" mentioned in Rule 14(5) should be demonstrated to be reasonable, justifiable and bona fide. The submission is that Rule 14(5) if read and understood as it is, it gives an impression that a person appointed in judicial services of the State by direct recruitment can be continued on probation, without recording any satisfaction about the completion of the probation period. Rule 15(5) contemplates the passing of specific order to the effect that a person appointed in service by direct recruitment has satisfactorily completed the period of probation, but further provides that if there is any delay in taking such a decision, there would not be any deemed completion of the probation period satisfactorily. The appointing authority, thus, has been conferred unbridled power to continue a person on probation without taking a decision as to whether he is fit to be confirmed in service on satisfactory completion of the probation period or he is to be discharged from service for his services being unsatisfactory.
36. Taking advantage of the language employed in Rule 14(5), the appointing authority, namely the High Court, in the instant case, has continued the petitioner in service treating her as Page 20 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined probationary even after completion of maximum period of probation of four years under Rule 14, without taking a final decision as to whether the petitioner was fit to be continued in service. It was submitted that on receipt of the appointment letter dated 21.08.2013, whereunder the petitioner was appointed on probation for two years, she has been on probation uptil 21.08.2015, two years from the date of joining. The first extension in the probation period of the petitioner was granted pursuant to the decision of the Standing Committee of the High Court for the period of one year with effect from 05.09.2015. On completion of the extended probation period, second extension was granted under the decision of the Standing Committee dated 26.04.2016 with effect from 05.09.2016 for another period of one year, which had expired on 05.09.2017.
37. The submission is that it was incumbent upon the High Court to take a decision whether to confirm the petitioner in service or discharge her from service after expiry of the period of second extension on 05.09.2017. Instead of taking any decision, the Standing Committee of the High Court in its meeting held on 08.11.2017 had extended the probation for a further period of one year with effect from 05.09.2017. Similar extension was granted for one year pursuant to the decision of the Standing Committee dated 11.12.2018. In a meeting of the Standing Committee held on 24.10.2019, however, the probation period was extended for six months with effect from 05.09.2019, which was completed on Page 21 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined 05.03.2020. Thereafter, though meetings of the Standing Committee were held on 11.09.2020 and 08.12.2021, but no decision had been taken and the petitioner had been permitted to continue in service without any decision for extension of the probation period or satisfactory completion of the period of probation to confirm her.
38. To utter surprise of the petitioner, in the meeting held on 04.02.2022, the Standing Committee had taken a decision to discontinue the petitioner from service by taking a decision to pass an order of simpliciter discharge with the observation that the petitioner be permitted to continue on probation till the State Government issues appropriate order for discharge. The said decision was ratified by the Full Court of the High Court in the Chamber Meeting held on 24.02.2022. The Government Notification extending the period of probation upto 11.03.2023 was issued and further by the Notification dated 11.03.2022 itself, the State Government had discharged the services of the petitioner simpliciter with immediate effect.
39. The submission is that the chronology of events leading to passing of the order of discharge simpliciter, makes it evident that there was no decision of the High Court, i.e. the appointing authority on the two aspects of the Rule 14, namely whether; (1) the petitioner had satisfactorily completed the period of probation and entitled to be confirmed in service or; (2) that the petitioner was to be discharged from service for her services being unsatisfactory. The employer, Page 22 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined namely the High Court had illegally continued the petitioner on probation giving her an impression that she may be confirmed in service after expiry of the extended period of probation. Five extensions were given without application of mind by the appointing authority on the above noted two aspects of the matter, which has eventually resulted in victimization of the petitioner.
40. It was vehemently argued that looking to the facts and circumstances of the instant case, the manner in which the petitioner has been continued on probation for the period of 8 ½ years, it would be in the interest of justice to read Rule 14(5) harmoniously with the remaining sub-rule (4), namely and sub-rules (1),(2) and (3), which provide initial and maximum period of probation of four years. No reasons have been recorded on each extension right from the first extension with effect from 05.09.2015, contrary to the provisions of sub-rule (3) of Rule 14. Harmonious construction of Rule 14(5) is to be made by reading the same in consonance with sub-rule(3) of Rule 14, which gives a clear picture that the probationer who has been allowed to continue beyond the maximum period of probation (of four years) cannot be discharged from service on the ground of unsatisfactory completion of the period of probation. Understanding the aims and object of Rule 14, it can be discerned that the said Rule enables the appointing authority to make an assessment of the performance of a probationer during the period of probation to decide as to whether the probationer is entitled to continue Page 23 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined in service as a permanent employee. The interpretation of the rule, however, cannot be made in a manner, which gives uncanalized power to the appointing authority to continue a direct recruitee in service without assessment of his performance and taking a decision strictly in accordance with the requirement of Rule 14.
41. Lastly, it was argued that to test the suitability of a direct recruitee in judicial service appointed on probation, three parameters are to be considered, namely (1) the Annual Confidential Reports (ACRs); (2) assessment of performance by considering the data of disposal of work and ; (3) the complaints, if any, with regard to the work and conduct of the judicial officer. In the instant case, the ACRs of four years of period of probation beginning from the date of joining i.e. 02.09.2013 till 05.09.2017, when the maximum period of four years of probation had been concluded, do not contain any adverse report.
42. The statement appended in the counter affidavit of the High Court at Page No."295" of the paper book itself indicates that the judicial work was commenced by the petitioner on 19.09.2014 for the last quarter of the 2014, the assessment was made as "Adequate". For the next two years, i.e. 2015- 16, during the first and second extension of the period of probation, in four quarters of each year, the reports were "Adequate", "Good", "Very Good" and "Excellent", which establish that the petitioner had shown improvement in her performance of disposal of cases.
Page 24 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined
43. At that stage, no decision was taken and the petitioner had been permitted to continue in service. The result is that an inference can be drawn that the appointing authority did not find the services of the petitioner as unsatisfactory. The further consequence is that the inference has to be drawn that the petitioner has successfully completed the initial probation period of two years as also the extended period of two years uptil 05.09.2017, satisfactorily. Even reports of the first three quarters of the year 2017 ending in September, 2017 show that the petitioner had achieved assessment disposal to the extent of "Excellent", Outstanding" and "Very Good". There was, thus, no question of treating the petitioner as probationer after 05.09.2017, after the services for the period of four years with effect from the date of joining were completed satisfactorily.
44. As regards the complaints against the petitioner, no inquiry had been conducted with regard to the three administrative complaints, details of which has been given hereinbefore. No final decision has been taken in the departmental inquiry conducted against the petitioner on the inquiry report submitted by the inquiry officer.
45. Considering the above noted facts, if three parameters for assessment of suitability of the petitioner as probationer are applied on the material on record, it is evident that there was no adverse confidential report, the performance of work had been "Excellent" and "Outstanding". The only parameter on which the petitioner remained to be tested was complaints, Page 25 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined which were made basis of discharging the petitioner from service by order of simpliciter discharge. In view of the fact that three administrative complaints were not inquired into and the departmental inquiry was not brought to its logical conclusion with the decision of the disciplinary authority, it is evident that the petitioner who was a confirmed employee after completion of four years of period of probation on 05.09.2017, had been illegally terminated from service by passing an order of discharge simpliciter treating the petitioner on probation, illegally.
46. It is argued that if the facts and circumstances of the case are seen and evaluated independently, it is evident that the petitioner had suffered because of the vindictive attitude of the employer and the pressure of the Principal District Judge to ensure that the petitioner was not confirmed in service despite working efficiently. Serious prejudice has been caused to the petitioner on account of the vindictive attitude of the employer and for this reason the order of simpliciter discharge of the petitioner from service is to be set aside, granting relief of reinstatement of the petitioner in service with all consequential benefits such as full backwages etc., inasmuch as, the petitioner has been illegally deprived of employment with effect from 11.03.2022, when the State Government had issued the impugned order of discharge simpliciter on the recommendation of the High Court.
47. In rebuttal, Mr.Shalin Mehta, learned Senior Counsel for the respondent No.1, namely the High Court, would urge that it Page 26 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined is the case where the petitioner has been discharged from service on account of her unsuitability for the service during the period of probation, for which no departmental or disciplinary inquiry was needed as per Rule 15. On a conjoint reading of Rule 14(5) and Rule 15 of the Rules' 2005, it was argued that under the scheme of the Rule 14 of the Rules' 2005, it is evident that no direct recruitee in judicial service can claim automatic confirmation on completion of the probation period. The appointing authority at the end of the period of probation or the extended period of probation, shall consider the suitability of the person so appointed to hold the post to which he has been appointed. Only such direct recruitees, who are found to be suitable for service can be confirmed in service by passing an order declaring him to have satisfactorily completed the period of probation. Admittedly, no such order has been passed by the appointing authority regarding completion of the period of probation satisfactorily by the petitioner.
48. Sub-rule(5) of Rule 14, is categorical in saying that there shall be no deemed order of satisfactory completion of the period of probation, inasmuch as, a specific order to that effect is to be passed necessarily. There is further clarification in rule that a person on probation cannot claim to have satisfactorily completed the period of probation because of delay in taking such decision by the appointing authority. Rule 15, sub-rule (1) begins with a Non-obstante clause giving overriding effect over Rule 14, empowering the appointing authority to Page 27 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined discharge a probationer from service, at any time during the period of probation, on account of his unsuitability for service. No specific order, thus, is required to be passed by the appointing authority as to whether the probationer has completed the period of probation satisfactorily. It would be suffice for the appointing authority to pass an order of discharge simpliciter of a probationer during the continuance of the probation period, on the ground indicated in sub-rule (1) which is unsuitability for the service. Sub-rule(2) of Rule 15 gives clarity that the order of discharge during the period of probation on account of unsuitability for service, against a direct recruitee shall indicate the grounds for discharge, but no disciplinary inquiry shall be necessary. The consequence is that the appointing authority can discharge a person continuing on probation in judicial service by passing a simpliciter order of discharge on the ground of him being unsuitable for the service, and no disciplinary inquiry is needed to state the ground of unsuitability or reaching at such a decision. In the impugned order of discharge of the petitioner from service dated 11.03.2022, the only ground stated is the unsuitability of the petitioner for the post she held, which is strictly in conformity with Rule 15(1) and (2) of the Rules' 2005. For the fact that the ground for discharge simpliciter of the petitioner from service, as per Rule 15, has been stated in the order impugned dated 11.03.2022, it cannot be termed as stigmatic. The argument of the learned Senior counsel for the petitioner that the order of discharge Page 28 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined simpliciter is to be set aside only on the ground of being stigmatic for using the words "unsuitability for the post" is to be outrightly rejected.
49. On the submission of the learned counsel for the petitioner that the order of simpliciter discharge is an order of termination with punishment, because the disciplinary authority did not follow the requirement of Article 311(2) of the Constitution, in the matter of disciplinary inquiry, namely D.E.No.1 of 2018, it was submitted by the learned Senior Counsel appearing for the High Court that the incomplete disciplinary inquiry cannot be said to be the foundation of the order of simpliciter discharge as the purpose of the inquiry was to ascertain whether the petitioner should be retained in service or not, and not to hold the petitioner guilty of the allegations of misconduct. Moreover, the departmental inquiry was not conducted behind the back of the petitioner. The petitioner was given full opportunity of hearing in the departmental inquiry and on receipt of the departmental inquiry, the Standing Committee sought for an opinion of the two Judges Committee on the inquiry report, who had expressed agreement with the inquiry report. However, instead of proceeding to terminate the services of the petitioner by way of punishment by forming opinion on the finding of guilt of misconduct in the inquiry report, the disciplinary authority proceeded to take a liberal view and recommended for simpliciter discharge of the petitioner from the services during the period of probation, so as to cause no Page 29 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined stigma. The petitioner being a probationer, it was not mandatory for the disciplinary authority to conclude the disciplinary inquiry by taking a decision on the inquiry report.
50. It is not the case of the petitioner that the disciplinary inquiry was conducted behind her back. There was no violation of Article 311(2) in conducting the disciplinary inquiry. The disciplinary inquiry or the administrative complaints, which were not examined by the disciplinary authority or appointing authority on its own, can only be said to be the motive and not foundation for passing the order of simpliciter discharge. It was urged that if the material recorded are evaluated, it can be discerned that the petitioner's services were not satisfactory and she was permitted to continue on probation because of the pendency of the departmental inquiry, which was held to assess the suitability of the petitioner in judicial service.
51. On the conclusion of the departmental inquiry, the simpliciter order of discharge was passed during the period of probation without forming any opinion on the finding of the guilt. The departmental inquiry initiated in the year 2016, during the extended period of probation of two years, had not been culminated as no finding of guilt had been arrived at, which can be said to be the foundation of the order of simpliciter discharge. On lifting the veil, the Court may come to the conclusion that the complaints against the petitioner in the departmental proceedings on the allegation of misconduct and Page 30 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined the administrative complaints received thereafter were motive and not foundation of simpliciter discharge order of the petitioner from service during the period of probation, inasmuch as, the appointing authority has reached at the conclusion that the petitioner is unsuitable for the judicial services requiring highest standard of performance by the appointee.
52. Reference has been made to the decision of the Apex Court in the case of Pavanendra Narayan Verma vs. Sanjay Gandhi P.G.I of Medical Science and another 9, wherein the Apex Court had an occasion to determine as to whether the impugned order was a letter of termination of service simpliciter or stigmatic termination.
53. The Court therein has referred to the three judicially evolved test to determine whether in substance an order of termination punitive, which is to see whether prior to termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct (c) which culminated in a finding of guilt. It is held therein that if all three factors are present, the termination has been held to be punitive irrespective of the form of the termination order. It is further held that conversely if one of the three factors is missing, the termination has to be upheld. Based on the said decision, it was argued by the learned counsel for the respondent High Court that as per the test laid down by the Apex Court, all the three above noted factors have to be 9 2002(1) SCC 520 Page 31 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined present together in a case to hold the order of termination being punitive.
54. In the instant case, though the departmental inquiry was initiated in the year 2016, but the same has not been culminated into the finding of guilt recorded by the disciplinary authority. The appointing authority considered all relevant material on record including Annual Confidential Report, assessment of disposals and administrative and vigilance complaints against the petitioner collectively and reached at the conclusion that the petitioner's services during the probation period remained unsatisfactory. Once there is no finding of guilt, the administrative complaints or departmental inquiry on the vigilance complaint, which form part of the process of assessment of the entire service record of the petitioner to record satisfaction about the completion of the probation period, may be said to be the motive, but cannot be treated as foundation of and the order of termination simpliciter to hold it punitive.
55. Reliance is further placed on the decisions of the Apex Court in Rajesh Kohli vs High Court Of J.&K. & Anr 10 and in the case of Chaitanya Prakash & Anr vs H.Omkarappa 11 to submit that the order of termination is a fall out of unsatisfactory services adjudged on the basis of overall performance and the manner in which the petitioner had conducted herself. It was argued that such satisfaction even if recorded that her service 10 (2010) 12 SCC 783 11 (2010) 2 SCC 623 Page 32 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined is unsatisfactory in the order would not make the order stigmatic or punitive.
56. Reliance is further placed on the decisions of the Apex Court in the case of H.F. Sangati vs. Registrar General, High Court of Karnataka and others12, and in the case of Krishnadevaraya Education Trust and another vs L.A. Balakrishna13 to submit that mere use of words that the petitioner is " unsuitability to hold the post which she held"
would not make the order of termination simpliciter, stigmatic. It was held by the Apex Court therein that there was no requirement to comply with the principles of natural justice, much less to be preceded by any former proceedings of inquiry before making the order.
57. The judgement of the Apex Court in the case of Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. and others14 has been placed before us to submit that the present is one of those cases where departmental inquiry was initiated and even after collection of evidence on the inquiry report submitted by the inquiry officer, of conclusion of inquiry by giving full opportunity of hearing to the petitioner, the disciplinary authority had decided to drop the inquiry and not to record any finding of guilt on the allegations of misconduct by considering the inquiry report. As no conclusion has been arrived at in the inquiry, the termination order based on the assessment of overall performance of the 12 (2001) 3 SCC 117 13 (2001) 9 SCC 319 14 (1999) 2 SCC 21 Page 33 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined petitioner cannot be held to be punitive or the petitioner would not suffer from any stigma with the passing of an simpliciter order of termination. The disciplinary inquiry which had not been concluded was actually aimed to assess as to whether the petitioner has completed the period of probation satisfactorily and was not aimed to prove the misconduct of the petitioner so as to hold her guilty.
58. It was further contended that only when the rule is silent or provides for deemed confirmation, there can be inference of deemed confirmation of services of a probationer as has been held in the judgements relied by the learned counsel for the petitioner. However, Rule 14(5) of Gujarat State Judicial Service Rules' 2005 specifically provides that a person appointed on probation shall not be entitled to claim deemed confirmation or deemed satisfaction of completion of the period of probation, and there has to be a specific order to that effect of the appointing authority. The second sentence of sub-rule(5) of Rule 14 qualifies the first sentence and makes it categorical that there shall be no deemed completion of probation period even if there is a delay in the decision of the appointing authority. In Rules' 2005, thus, there is no concept of deemed confirmation.
59. Moreover, in the instant case, the appointing authority had extended the period of probation with the decision of the Standing Committee, in order to assess the work and conduct of the petitioner. As per the entries in the Annual Confidential Report for the period from 20.12.2014 to Page 34 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined 01.06.2015 on completion of 21 months of service, the assessment of the District Judge about the knowledge of law and procedure; willingness to acquire knowledge of law and procedure; quality of judgement; knowledge of civil and criminal laws were "Poor"; "needs to work hard"; "Civil Judge requires improvement". The probation period was extended for further period of one year for these reasons. In the ACR from 06.09.2015 to 06.12.2015 with similar comments grading was that the petitioner is "not yet fit for confirmation". From 07.12.2015 to 06.03.2016, there were comments towards knowledge of law and procedure that the petitioner "needs much improvement and is very weak in basic procedures of law". With these comments in the ACR of the petitioner, in view of the pending inquiry pursuant to the decision of the Standing Committee dated 29.09.2016, the period of probation of the petitioner was extended from time to time.
60. For the mere fact that a regular departmental inquiry was initiated considering the report of the Principal District Judge, Vadodara in the allegation of irregularities and illegalities committed by the petitioner, no fault can be found in the action of the appointing authority.
61. It is submitted that the disciplinary inquiry was conducted by complying with the principles of natural justice in order to see that the appointing authority may reach at the satisfaction of work and conduct of the petitioner during the period of probation. Each time deliberations were made in the meetings Page 35 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined of the Standing Committee before taking decision to extend the period of probation. There was no requirement of recording any reason in the resolution of the Standing Committee for extending the period of probation of the petitioner, as it was a collective decision of a body of persons.
62. As regards the submission of the learned counsel for the petitioner that the "assessment of disposal of cases" of the petitioner were "Very Good" and even "Excellent" and "Outstanding", it was submitted that the same though is a relevant factor to assess, but cannot be said to be the only factor. The Annual Confidential Report, the behaviour of the petitioner with the Bar and her colleagues and other factors of work, conduct and integrity of the judicial officer, namely the petitioner herein, in performance of her work and duties are the factors, were collectively taken into consideration and on overall assessment of all attending factors, a decision has been arrived at to pass an order of discharge simpliciter, noticing that the petitioner is unsuitable for the post held by her.
63. Placing the observations of the Apex Court in Pavanendra Narayan Verma9 (supra) and a recent judgement of the Apex Court in the case of Central Industrial Security Force vs. HC(GD) Om Prakash15, it was vehemently submitted by the learned Senior Counsel for the High Court that judicial service is not akin to other services. Dispensation of justice is not 15 (2022) 5 SCC 100 Page 36 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined only an onerous duty but has been considered as discharging of pious duty and, therefore, it is a very serious matter. The petitioner has not been able to meet the standards of work and conduct of a judicial officer discharging judicial duties, which require highest standards of conduct and integrity.
64. The submission, thus, is that the simpliciter order of discharge will not be a disqualification for future employment only because an inquiry report has been submitted by the inquiry officer appointed by the disciplinary authority, which did not proceed further to record any finding of guilt. Future career of the petitioner has not been put in jeopardy and with the simpliciter order of discharge, the petitioner's services on probation has been discontinued.
65. It is further submitted that a First Information Report has been lodged against the petitioner, wherein the petitioner has applied for anticipatory bail, which was rejected by this Court vide judgement and order dated 23.01.2023 in Criminal Miscellaneous Application No. 23809 of 2022.
66. With these submissions, it was urged by the learned Senior Counsel for the respondent High Court that the writ petition challenging the order of simpliciter discharge be dismissed being devoid of merits.
67. Having heard learned counsels for the parties and perused the record, we may first go through the provisions of the Rules' 2005, governing the recruitment and appointment of a judicial officer in the State Judicial Service known as the Gujarat State Judicial Service, in order to deal with the arguments of Page 37 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined the learned counsel for the petitioner pertaining to the validity of the Rule 14(5) and alternative prayer to interpret the Rule, in the facts and circumstances of the instant case and that on account of continuance of the petitioner in service for 8 ½ years, there shall be a deemed confirmation of her services.
68. We may note, at the outset, that the learned counsel for the petitioner has not argued on the validity of the Rules 14 and 15 of the Rules' 2005, rather he has pressed the alternate prayer that the Court may interpret the Rule 14(5) of the Rules, 2005 in such a manner that a declaration be made that the words "the period of probation" occurring in Rule 14(5) do not include "the extended period of probation", the "delay" mentioned in Rule 14(5) should be interpreted to be the delay demonstrated to be reasonable, justifiable and bona fide. The submission is that these two requirements, have to be read into by reading down the Rule 14(5) of the Rules' 2005 or else the provisions of the Rules' 2005 be held arbitrary and irrational.
69. The submission is that Rule 14(5) should be read and interpreted in a manner holding that a person appointed in Judicial service of the State cannot be continued on probation beyond the maximum period of four years as per sub-rules(1) to (3) of Rule 14 and, if he continued beyond the said period, he shall be deemed to have satisfactorily completed the period of probation even if no specific order in writing has been passed by the appointing authority in his favour Page 38 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined recording satisfaction of completion of the period of probation. He shall be, thus, be treated to be confirmed employee by incorporating a deeming fiction by way of judicial interpretation.
70. Further submission is that the second sentence in sub-rule(5) of Rule 14 that "the delay in passing the order recording satisfaction of completion of probation period, shall not entitle the person to be deemed to have satisfactorily completed the period of probation", is liable to be interpreted that the delay, if any, has to be demonstrably reasonable, justifiable and bona fide by the appointing authority, where a person appointed on probation has been continued in service without passing any specific order in terms of su-rules (4) and (5) of the Rule 14. It was, thus, submitted that in any case, a probationer who has been continued in service beyond the maximum period of probation prescribed in the Rule, which is four years, shall be deemed to have been confirmed in service by operation of law.
71. With this interpretation given to Rule 14(5) read with sub-
rules(3) and (4) of the Rules' 2005, it was submitted by the learned counsel for the petitioner that the petitioner cannot be said to have been continued in service as a probationer beyond the maximum period of probation of four years. As per Rule 14, her services shall be deemed to have been confirmed after expiry of period of four years as no specific order was passed by the appointing authority to record satisfaction of completion of period of probation as required Page 39 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined under Rule 14(5). The inordinate delay of 8 ½ years caused in not passing any order recording satisfaction about the completion of period of probation by the petitioner or to discharge her from service in case of dissatisfaction, remains unexplained and cannot be said to be reasonable, justifiable and bona fide by any stretch of imagination. The submission, thus, is that reading the words "reasonable, justifiable and bona fide" into the statute, in Rule 14(5) resulted into deemed confirmation in a case of unreasonable and unexplained delay. Without there being a specific order, the petitioner shall be treated to be confirmed employee. Analysis: -
(i) Interpretation of Rules:-
72. Testing these submissions of the learned counsel for the petitioner, we would be required to go through the scheme of Rule 2005, which is the rule framed by the Governor of Gujarat in exercise of power conferred by the proviso to Article 304 read with Article 324 of the Constitution of India, after consultation with the High Court of Gujarat and Gujarat Public Service Commission. With the framing of Rules' 2005, the State service known as "Gujarat State Judicial Service"
has been constituted on and from the date of commencement of these rules, which are in supersession of the previous rules known as Gujarat Judicial Services Recruitment Rules, 1961.
73. The Gujarat State Judicial Service Rules, 2005 are made to regulate the recruitment to the Gujarat State Judicial Service comprising all different cadres of posts namely (i) District Page 40 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined Judge (ii) Senior Civil Judge (iii) Civil Judge. The appointing authority for the cadres of District Judge and Civil Judge is the Government of Gujarat and for the cadre of Senior Civil Judge, the High Court, as per Rule 4 of the Rules' 2005. As per the mode and method of recruitment, the recruitment to the cadre of Civil Judge is made through a competitive examination conducted by the High Court. Rules 14 and 15 contained in Chapter IV prescribe the period of probation and officiation and the manner in which the services of a probationer may be discharged during the period of probation. Rule 17 provides as to when the probationer shall be confirmed against a substantive post. Rules 14,15 and 17 are relevant to be extracted hereunder:
"14. Probation and Officiation (1) All appointments to the service by direct recruitment shall be on probation for a period of two years.
(2) All appointments by promotion shall be on officiating basis for a period of two years. (3) The period of probation or officiation, as the case may be, for reasons to be recorded in writing may be extended by the appointing authority by such period not exceeding the period of probation or officiation, specified in sub-rules(1) or(2) as the case may be.
(4) At the end of the period of probation or officiation or the extended period of probation or officiation, as the case may be, the appointing authority shall consider the suitability of the person so appointed or promoted to hold the post to which he has been appointed or promoted, and-
(i) if it decides that he is suitable to hold the post to which he was appointed and has passed the Page 41 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined special examinations or tests, if any, required to be passed during the period of probation or officiation, as the case may be, it shall, as soon as possible, issue an order declaring him to have satisfactorily completed the period of probation or officiation, as the case may be, and such an order shall have effect from the date of expiry of the period of probation or officiation, including extended period, if any, as the case may be.
(ii) if the appointing authority considers that the person is not suitable to hold the post to which he was appointed or promoted as the case may be, shall by order,
(a) if he is a promotee, revert him to the post which he held immediately prior to his promotion.
(b) if he is a probationer, discharge him from service. (5) A person shall not be considered to have satisfactorily completed the period of probation or officiation, as the case may be, unless a specific order to that effect is passed. Any delay in passing such an order shall not entitle the person to be deemed to have satisfactorily completed the period of officiation or probation as the case may be.
15. Discharge of a probationer during the period of probation-
(1) Notwithstanding anything contained in rule 14, the appointing authority may, at any time during the period of probation, discharge from service, a probationer on account of his unsuitability for the service.
(2) An order under sub-rule(1) shall indicate the grounds for the discharge but no disciplinary enquiry shall be necessary.
17. Confirmation:- A probationer who has been declared to have satisfactorily completed his probation and a promotee who has been declared to have satisfactorily completed his period of officiation shall be appointed on long term basis as a full member of the service in the category of Page 42 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined post to which he was appointed or, as the case may be, promoted and shall be confirmed at the earliest opportunity against the substantive post."
74. Thus, the manner in which a direct recruitee appointed on probation can be confirmed in service, the rule prescribes that :-
(i) All direct recruitees shall be appointed on probation for the period of two years;
(ii) The appointing authority may, for reasons to be recorded in writing extend the period of probation, not exceeding the period specified in sub-rule(1) or Rule 14, which is two years;
(iii) The appointing authority shall consider the suitability of the person so appointed on probation, at the end of the period of probation or the extended period of probation, to decide as to whether he is entitled to hold the post to which he has been appointed;
(iv) In case, the appointing authority reaches at a decision that the probationer is suitable to hold the post to which he has been appointed, an order declaring him to have satisfactorily completed the period of probation shall have to be issued, which shall have the effect from the date of expiry of the period of probation including extended period, if any.
(v) However, in case the appointing authority considers that the probationer is not suitable to hold the post to which Page 43 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined he was appointed, it shall pass an order discharging him from service.
(vi) Sub-rule (5) of Rule 14 is categorical to the extent that unless a specific order is passed, the probationer shall not be considered to have satisfactorily completed the period of probation. It further clarifies that the delay, if any, in passing such an order shall not entitle the probationer to be deemed to have satisfactorily completed the period of probation.
(vii) Rule 17 provides that a probationer, who has been declared to have satisfactorily completed his probation, shall be appointed on long term basis as a full member of the service in the category of post to which he was appointed.
(viii) Rule 15 starts with a Non-obstante clause and confers power the appointing authority to discharge a probationer from service at any time during the period of probation, on account of his unsuitability for the service.
(ix) Sub-rule(2) of Rule 15 further provides that while passing the order of discharge under sub-rule(1) of Rule 15, the grounds for discharge shall be indicated in the order, but no disciplinary inquiry shall be necessary.
75. As noted hereinbefore, no submissions have been made by the learned counsel for the petitioner on the validity of Rules 14 and 15 of the Rules' 2005, though prayer has been made in Page 44 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined the writ petition in that regard. Learned counsel for the petitioner invoking the power of judicial review of this Court in the discretionary exercise of power under Article 226 of the Constitution of India seeks interpretation of the purport and scope of the Rule 14, specifically sub-rule (5) of Rule 14, with the submissions noted hereinbefore.
76. While dealing with the said argument of the learned counsel for the petitioner, we may first note the basic rules of interpretation of the Statute as stated in the textbook of Justice G.P. Singh on "Principles of Statutory Interpretation"
(15th Edition). The rule of literal construction as stated therein required that the words of Statute are to be first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context, or in the object of the statute to suggest to the contrary (Reference: Corporation of the City of Victoria vs. Bishop of Vancouver Island 16)
77. As noted therein Lord Atkinson in Corporation of the City of Victoria16 (supra) states as under:-
" In the construction of statutes, their words must be interpreted in their ordinary grammatical sense unless there be something in the context, or in the object of the statute in which they occur or in the circumstances in which they are used, to show that they were used in a special sense different from their ordinary grammatical sense."
78. As noted at page No."66" of the text book:-
16 AIR 1921 PC 240 Page 45 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined "Viscount Simon, LC, said:
The golden rule is that the words of a statute must prima facie be given their ordinary meaning.
Natural and ordinary meaning of words should not be departed from "unless it can be shown that the legal context in which the words are used requires a different meaning". Such a meaning cannot be departed from by the judges "in the light of their own views as to policy" although they can "adopt a purposive interpretation if they can find in the statute read as a whole or in material to which they are permitted by law to refer as aids to interpretation an expression of Parliament's purpose or policy". For a modern statement of the rule one may refer to the speech of Lord Simon of Glaisdale in a case where he said:
Parliament is prima facie to be credited with meaning what is said in an Act of Parliament. The drafting of statues, so important to a people who hope to live under the rule of law, will never be satisfactory unless courts seek whenever possible to apply ' the golden rule' of construction, that is to read the statutory language, grammatically and terminologically, in the ordinary and primary sense which it bears in its context, without omission or addition. Of course, Parliament is to be credited with good sense; so that when such an approach produces injustice, absurdity, contradiction or stultification of statutory objective the language may be modified sufficiently to avoid such disadvantage, though no further."
79. The rule of statutory interpretation stated above has been quoted with approval by the Apex Court in the case of Harbhajan Singh vs. Press Council of India 17.
17 (2002) 3 SCC 722.
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80. In Nemai Chandra Kumar vs. Mani Square Ltd. 18 it was observed by the Apex Court that when the Court resorts to the literal interpretation of the provision, the starting point in the statutory interpretation is the statute itself and if the language of the statute is clear and unambiguous, there is no need to look outside the statute.
81. The golden rule of construction of statute as stated by the S.R.Das, J in the case of Jugalkishore Saraf vs. Raw Cotton Co.Ltd19 while referring to the rule before the Bench is:-
"The cardinal rule of construction of statutes is to read the statutes literally, that is, by giving to the words their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning, the Court may adopt the same. But if no such alternative construction is possible, the court must adopt the ordinary rule of literal interpretation. In the present case the literal construction leads to no apparent absurdity and therefore, there can be no compelling reason for departing from that golden rule of construction."
82. In the case of Union of India and others vs. Exide Industries Limited and another20 the Apex Court has held in paragraph No."33' as under:-
"33. Indubitably, when the Court examines the validity of a provision, its primary concern is the literal text of the provision. It is so because the legislature speaks through the text and as long as it is not speaking in an equivocal manner, there is limited space for the Court to venture beyond the text. This constitutes the first test of interpretation, often termed 18 (2015) 14 SCC 203 19 AIR 1955 SC 376 20 (2020) 5 SCC 274 Page 47 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined as the literal interpretation. If the text of the provision is unambiguous, the legislative intent gets coalesced and is epitomised therefrom."
83. In its previous decision in the case of Nasiruddin and others 21 vs. Sita Ram Agarawal the Apex Court had made the following observations:-
"37. The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the Court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well-settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression 'shall or may' is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well-settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character."
84. In the case of Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and others22 it was held that:-
"23. It is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and words by words. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity, 21 (2003) 2 SCC 577 22 (2003) 2 SCC 111 Page 48 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined or inconsistency therein and not otherwise. An effort must be made to give effect to all parts of statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant.
24. True meaning of a provision of law has to be determined on the basis of what provides by its clear language, with due regard to the scheme of law.
25. Scope of the legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words statutory enactments must ordinarily be construed according to its plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the rest of the statute."
85. In light of the above legal position, understanding the golden rule of interpretation of statute, true meaning of the provision of law has to be determined by us by reading of the language of the provision with due regard to the scheme of law, namely Rules 14,15 and 17 in the instant case. According to their plain meaning, without adding any words or altering or modifying the provisions, by adding or subtracting any words into the statute.
86. The scheme of the Rules' 2005 as can be discerned by reading of Rules 14 and 17 is that a direct recruitee, who is necessarily to be appointed on probation for the initial period of two years may be continued on probation for a further period of two years, which is qualified by words "not exceeding the period of probation" in sub-rule (3) of Rule 14. There is further requirement in sub-rule (4) of Rule 14 that Page 49 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined an appointing authority shall have to consider the suitability of a person appointed on probation to hold the post to which he has been appointed. (Reference: Rule 17). Sub-rule(5) of Rule 14 further add by way of clarification that no person appointed on probation in Judicial service can be treated to have been satisfactorily completed the period or probation by a deeming fiction, in case of any delay in passing a specific order of satisfactory completion of period of probation by such person.
87. From a careful reading of the rule in this manner without adding or subtracting words to a statute, we find that though sub-rule(3) of Rule 14 provides for time period of extension of probation, but the second sentence of sub-rule (5) makes it clear that a person appointed on probation cannot be deemed to have been confirmed in service by a legal fiction of deeming provision, only because of the fact that such person has been continued beyond the extended period of probation of two years prescribed in sub-rule(3) of Rule 14. The Rule 14(5) is categorical in the terms that in absence of a specific order of recording satisfaction of completion of period of probation of such appointee, passed by the appointing authority a person appointed on probation in Judicial service cannot claim to have been confirmed in service.
88. Having due regard to the scheme of the rule, it is undoubtedly clear that for confirmation of a probationer appointed in Judicial service, i.e. to hold the post to which he was appointed on a long term basis, it is mandatory Page 50 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined requirement of the Rules' 2005 that there shall be a specific order to record satisfaction of completion of period of probation and in absence of such an order or unless and until such an order is passed by the appointing authority, a probationer cannot be deemed to have satisfactorily completed the period of probation so as to claim confirmation in service.
89. Any other meaning to interpret sub-rule(5) of Rule 14 would result in deletion of the sentence " Any delay in passing such an order shall not entitle the person to be deemed to have satisfactorily completed the period of officiation or probation as the case may be.", which would be contrary to the basic rule of construction of Statute. Reading the Statute as a whole, gathering the intention of the Legislature, it appears that no person appointed on probation in the Gujarat State Judicial Service can claim confirmation in service unless and until the appointing authority records its satisfaction about the completion of the period of probation by such person.
90. It is not permissible for us to enlarge the intention of the Legislature, which is clear and unambiguous in the scheme of the Rule 14. Rule 14 cannot be read to mean that a person appointed on probation in Judicial service, if continued in service beyond the extended period of probation of two years as per sub-rule (3) of Rule 14, would be a confirmed employee, even if the appointing authority has not passed any order to record satisfaction of completion of period of probation by such person.
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91. The relevant provisions of Rules' 2005, namely Rules 14,15 and 17 are absolutely clear, unambiguous and implicit. A plain meaning of the said provisions, in our considered opinion, would lead to only one conclusion that to confirm a direct recruitee on probation in Judicial service, a specific order to the effect that such a person has satisfactorily completed the period of probation is necessary, to appoint him on long term basis as a full member of service. No other view or contrary view is possible to be worked out within the scheme of the rule pertaining to probation and confirmation, as any such effort would lead to the provision becoming unintelligible, absurd, unworkable and totally irreconcilable with the whole scheme of the rules. The submissions made by the learned counsel for the petitioner for interpretation of Rule 14(5), therefore, have to be turned down being contrary to the settled position of law.
92. We may note that in S. Sukhbans Singh4 (supra), the plea of the appellant therein that because he was continued on the post without being reverted after the expiry of the period of probation, he had a legal right to be confirmed, has been turned down. It was noted that the rule is question says no more than this that at the end of the probation period, the probationer unless reverted or absorbed in substantive post, will be liable for being made permanent. It was held that the appellant will continue to be a probationer unless he was reverted or absorbed in a permanent post but it would not be Page 52 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined correct to say that the probationer (appellant therein) has any right to the higher post in which he was officiating or a right to be confirmed. A probationer being merely made eligible for being absorbed in a permanent post is in no better position. It was observed that the very fact that a person is a probationer implies that he has to prove his worth, his suitability for the higher post in which he is officiating. If his work is not found to be satisfactory, he will be liable to be reverted to his original post even without assigning any reason. With these observations, the contention of the appellant therein relying upon the Rule 24 of the Punjab Civil Service Rules, which provide that on completion of the period of probation prescribed under the provisions of Rule 22, the member of the service shall be qualified for substantive permanent post, that he must be deemed to have been confirmed in his post by sheer lapse of time, or he would automatically clear the status of permanent member of service, was turned down. It was held that unless the rule, which he has pointed out, expressly provide for such a result, there can be no automatic acquisition of status of a permanent employee.
This judgement does not help the petitioner in any manner rather substantiates our view.
93. In another decision in Dharam Singh6 (supra), the Apex Court noticing Rule 6(3) of Punjab Educational (Provincialised Cadre) Class III service therein has recorded that the rule forbids extension of the period of probation beyond three Page 53 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined years. It was held that where service rules fix a certain period of time beyond which the probationary period cannot be extended and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to have continued in that post as a probationer by implication. It was held that such an implication was negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw an inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication. It was further observed that the rule did not require the probationer to pass any test or fulfill any other condition before confirmation. There was no compelling reason for dispensing with their services and re-employ them as temporary employee. The High Court, thus, has rightly refused to draw the inference that they were discharged from service as probationer and re-employed. It was held that though the appointing authority did not pass formal order of confirmation in writing, it should be presumed to have passed orders of confirmation by allowing them to continue in their post after expiry of the maximum period of probation. After such confirmation, the authority had no power to dispense with their services under Rule 6(3) on the ground that their work or conduct during the period of probation was Page 54 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined unsatisfactory and depriving them of their right amounted to removal from service by way of punishment. This observation of the Apex Court in the said case was based on the reading of the rule before it, which did not require any condition to be fulfilled before confirmation. Rule 6(3) with the proviso therein is relevant to be noted hereinunder:
"(3) On the completion of the period of probation the authority competent to make appointment may confirm the member in his appointment or if his work or conduct during the period of probation has been in his opinion unsatisfactory he may dispense with his services or may extend his period of probation by such period as he may deem fit or revert him to his former post if he was promoted from some lower post:
Provided that the total period of probation including extensions, if any, shall not exceed three years."
94. In this context we may revert to sub-rule(5) of Rule 14. The provision states that the completion of the period of probation would not confer any right on the probationer to be confirmed till a specific order to that effect is passed. Rule 14(5) states that an express order of confirmation is necessary. The rule is in the negative form that the completion of the period of probation would not confer a right of confirmation till a specific order to that effect is passed. The delay in passing such an order shall also not entitle the probationer to claim confirmation by deeming fiction of satisfactorily completing the period of probation. The said provision makes explicit what is implicit in the first part of sub-rule (5) of Page 55 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined Rule 14 that the period of probation if extended without passing a specific order of confirmation, the probationer has no right to claim deemed confirmation by mere continuing beyond the period of probation.
95. Moreover, the extensions of the period of probation, in the instant case, were expressed with the decisions of the Standing Committee intimating the petitioner that she was required to show improvement in her work and conduct. As noted hereinbefore, Rule 14(5) requires fulfillment of condition of passing an order to record satisfactory completion of the period of probation by a probationer, for confirmation of his service, appointing him on long term basis as a full member of the service.
96. The language of sub-rule(5) of Rule 14 qualifies the requirement of sub-rule(3) of Rule 14, which fixes time period of probation, with the added provision in sub-rule(5) of Rule 14 that in case of delay in passing the order of confirmation, a probationer would not acquire the status of confirmed employee.
97. We, therefore, find that none of the aforesaid decisions relied by the learned counsel for the petitioner would come to the aid of the petitioner, inasmuch as, the petitioner has been continued in service beyond the period of probation with specific orders of the competent authority, namely the Standing Committee on assessment of her work, performance and conduct. It is not the case where the petitioner has been Page 56 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined allowed to continue beyond the the period of probation without application of mind by the competent authority. The arguments of the learned counsel for the petitioner that the petitioner shall be deemed to have been confirmed in service by the mere fact that she had been permitted to continue in service beyond the extended period of probation prescribed in sub-rule(3) of Rule 14 of the Rules' 2005, are liable to be turned down.
98. Considering the judgements relied on by the learned counsel for the petitioner to assert that in absence of formal order of confirmation, when the probation was for a specific period and the petitioner has been allowed to continue in the post after the expiry of the said period, she has a legal right to be confirmed or to be treated as if she was confirmed, in the facts of the instant case, we my reiterate that the period of probation of the petitioner in service has been extended by the competent authority, namely the Standing Committee of the High Court in the meetings held from time to time.
99. The last extension for six months with effect from 05.09.2019 had expired on 05.03.2020. In the next two meetings dated 11.09.2020 and 08.12.2021, held thereafter, the subject was deferred to further assess the performance of the petitioner during the extended period of probation. On 04.02.2022, it was resolved by the Standing Committee to discharge the petitioner from service by passing a simpliciter order of discharge and the probation period from the date of expiry, i.e. 05.03.2020 was extended till the issuance of the order of Page 57 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined discharge by the State Government. This decision of the Standing Committee was ratified by the Full Court of the High Court in the Chamber Meeting held on 24.02.2022.
100. From the above noted facts, at least, it is clear that a conscious decision had been taken by the Standing Committee of the High Court each time while extending the period of probation of the petitioner assessing her performance before recording satisfaction about the work and conduct of the petitioner.
(ii) Lifting the veil:- Looking to the records:-
101. Lifting the veil, in order to know as to what had transpired before the Standing Committee each time when the order of extension of the period of probation of the petitioner was passed, we have summoned the entire original record pertaining to the meetings of the Standing Committee held on 26.04.2016, 29.09.2016, 08.11.2017, 11.12.2018, 24.10.2019, 11.10.2020, 08.12.2021 and 04.02.2022.
102. We may note that the initial period of probation of two years had expired on 05.09.2015. In the meeting of the Standing Committee held on 26.04.2016, the service record of the petitioner was placed with the comments of the Unit Judge as approved by the then Acting Chief Justice, wherein it was reported that the Form-IV first Confidential Report on completion of 21 months of service of the petitioner Page 58 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined submitted by the Principal District Judge, Vadodara showed the following remarks:-
FORM-IV (02/12/2014 to 01/06/2015) 4 Personal Characteristics (9) Relation with colleagues. : Not friendly 5 The District Judge's assessment of the Civil Judge regarding his/her
(iii) Knowledge of law and : Poor procedure.
(iv) Willingness to acquire : Needs to work hard knowledge of law and procedure.
(v) Quality of Judgements. : Average, Requires improvement.
(vii) : Requires improvement.
(A) Administrative capacity knowledge of administrative work and office routine.
(B) Knowledge of the Civil : Needs to be acquainted with Manual, Criminal Manual, and the Civil and Criminal Accounts Code, including all Manuals.
kinds of accounts maintained in Civil and Criminal Courts. (This answer should be based on personal assessment by District Judge).
(x) Attitude towards the Public and : Requires improvement. the Bar
(xi) Any other remarks. : The officer has had problem with the colleague judges, staff members and the APP and complaints have been Page 59 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined received in oral and writing regarding her behaviour (Copies of complaints are annexed herewith as Annexure A) 6 The District Judge's : Her probation period should recommendation whether the be extended for further one Civil Judge is fit to be certified year.
as having satisfactorily completed the period of probation or whether his/her period of probation should be extended and if so, for what period or whether his/her service should be terminated.
103. Considering the remarks of the Principal District Judge, the Unit Judge had recommended to communicate the above remarks to the petitioner, except the remarks at Column (xi) and 6 to show improvement in that respect in future. Simultaneously, it was also opined that the period of probation of the petitioner be extended for one year as recommended by the Principal District Judge, Vadodara. On the said report, the then Acting Chief Justice had directed to place the matter before the Standing Committee. In the meeting held on 26.04.2016, the Standing Committee resolved as under:-
"Decision taken at the Standing Committee Meeting held on 26-04-2016:-
SUBJECT NO.2 (1) To consider the
question of Extension of
Probation Period of
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NEUTRAL CITATION
C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024
undefined
Ms.M.H.Panchal, 2nd
Additional Civil Judge,
and JMFC, Vadodara, a
further period of one year
w.e.f. 06/09/2015 as
recommended by Principal
District Judge, Vadodara.
(2) To consider as to
whether adverse remarks
passed by Principal
District Judge, Vadodara
in respect of
Ms.M.H.Panchal in Form-
IV for the period from
02/12/2014 to 01/06/2015
may be communicated to
her (Admn."A"Branch)
Considered. It is resolved that:
(1) The probation Period of Ms. M.H.
Panchal, 2nd Additional Civil Judge and JMFC, Vadodara, be extended for a further period of one year with effect from 06/09/2015. (2) The adverse remarks passed by Principal District Judge, Vadodara in respect of Ms.M.H.Panchal in Form-IV for the period from 02/12/2014 to 01/06/2015, be communicated to her."
104. After expiry of one year, on completion of extended period of probation on 05.09.2016, the matter was placed before the Standing Committee in its meeting dated 29.09.2016 with the Fourth Quarterly Report in Form-IV for the period from 07.06.2016 to 06.09.2016, wherein remarks in the report of the Principal District Judge are as under:-
Page 61 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined Sr.No. Column Remarks
4.(9) Relation with colleagues Not cordial
5. Administrative Capacity Yet, improvement (VII) knowledge of administrative requires.
work and office routine (VIII) Dispatch of work, disposals, etc. Good, in disposal needs improvement.
6 The District Judges Not yet fit recommendation whether the Civil Judge is fit to be certified as having satisfactorily completed the period of Probation or whether his/her period of probation should be extended and if so, for what period or whether his/her service should be terminated
105. Further there was a report of the Principal District Judge with respect to the irregularities and illegalities in the case records of the Court of the petitioner, whereupon the then Unit Judge had recommended to initiate regular inquiry against the petitioner and one another officer, subject to the approval of the Hon'ble the Chief Justice. The matter was again placed before the Standing Committee by the then Chief Justice and it was resolved that:-
" Decision taken at the Standing Committee Meeting held on 29-09-2016:-
SUBJECT NO.9 To consider and to Page 62 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined decide whether Probation Period of Ms.M.H.Panchal, 2nd Additional Civil Judge and J.M.F.C., Savli, Dist. Vadodara may be extended beyond 05/09/2016 (A.O.H.) as recommended by the Principal District Judge, Vadodara or otherwise. (Admn."A" Branch)
Considered. It is resolved that the probation period of Ms.M.H.Panchal, 2 nd Additional Civil Judge and JMFC, Savli, District Vadodara, be extended for a period of one year beyond 5.9.2016(A.O.H.)."
106. The third extension was granted to the petitioner pursuant to the decision of the Standing Committee in its meeting held on 08.11.2017, wherein it was reported that again the performance of Ms.M.H.Panchal (petitioner) was not found satisfactory and on the allegations in the report of the Principal District Judge, consequent upon the decision taken in the meeting of the Standing Committee dated 11.09.2017, a Departmental Inquiry (DI No.10 of 2016) was initiated against the petitioner. The Written Statement of defence was submitted by the petitioner to the chargesheet served upon her and the matter was referred to the Standing Committee for consideration. Quarterly reports for the period from 06.09.2016 to 06.12.2016 and from 07.12.2016 to 06.03.2017 as also for the period from 07.03.2017 to 09.05.2017 were Page 63 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined placed before the Standing Committee, which indicated that the Principal District Judge had not certified that Ms.M.H.Panchal (the petitioner) to be fit for clearance of probation. The petitioner was transferred to District Surendranagar from District Vadodara on 11.05.2017. Fourth Quarterly Reports in Form-IV for the period from 25.05.2017 to 06.06.2017 and from 07.06.2017 to 06.09.2017 on completion of the extended period of probation, were also placed before the Standing Committee which show the following remarks passed by the Principal District Judge, Surendranagar:-
FOR THE PERIOD FROM 25/05/2017 TO 06/06/2017 Sr.No. Column Remarks 5 Initiative Average
7 Diligence and Average industry
(v) Quality of Good. But no Civil Judgements Judgement has delivered.
FOR THE PERIOD FROM 07/06/2017 TO 06/09/2017 Sr.No. Column Remarks 5 Initiative Average 7 Diligence and Average industry
(v) Quality of Good. But not delivered any Judgements Civil case Judgement.
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107. With the above reports, the recommendation of the Principal District Judge, Surendranagar certifying "Ms. M.H. Panchal to be fit for clearance of probation", was not approved by the Unit Judge as also the Chief Justice and the matter was placed before the Standing Committee being the competent authority for taking a decision on the said reports. The Standing Committee in its meeting held on 08.11.2017 resolved as under:-
"Decision taken at the Standing Committee Meeting held on 08-11-2017:-
SUBJECT NO.3 To consider and to decide,
report submitted by
Principal District Judge,
Surendranagar, to set
aside and whether
Probation Period of M.S.
M.H.Panchal, Principal
Civil Judge and
J.M.F.C,Sayla, Dist.
Surendrangar may be
extended beyond
05/09/2017 (A.O.H.) or
otherwise. ["A" Branch]
"Considered. It is resolved that probation of Ms.M.H. Panchal, Principal Civil Judge and J.M.F.C., Sayla, Dist: Surendranagar, be extended for a period of one year with effect from 05/09/2017(A.O.H.)."Page 65 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024
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108. On completion of probation period after third extension on 05.09.2018, the matter was again placed before the Standing Committee in the meeting dated 11.12.2018. From the papers presented before the Standing Committee, it may be noted that no vigilance complaint was pending against the petitioner. The Departmental Inquiry, namely D.I.No.10 of 2016 was pending with the Inquiry Officer. The report placed before the Standing Committee records that earlier at a weekly meeting held on 19.04.1983, the Standing Committee had resolved that, in case, a Civil Judge or JMFC, appointed on probation continued on probation beyond two years, the report in Form-IV shall be called every three months till satisfactory completion of period of probation was recorded. Noticing the above, vide letter dated 15.11.2017, the Principal District Judge, Surendranagar was requested to submit quarterly reports in respect of the petitioner, namely Ms.M.H. Panchal. The Quarterly Reports in Form-IV from 06.06.2018 to 19.08.2018 and for the period from 20.08.2018 to 05.09.2018 showed as under:
FOR THE PERIOD FROM 06/06/2018 TO 19/08/2018 3 Character
(a) Integrity Fair 4 Personal Characteristics (1) Personality Fair (3) General Knowledge Fair Page 66 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined (7) Diligence and industry Fair 5 The District Judge's assessment of the Civil Judges regarding his-
(vii)(b) Knowledge of the Civil Manual Fair and Criminal Manual and Account code, including all kinds of accounts maintained in Civil and Criminal Courts.(This answer should be based on personal assessments by District Judges) 6 The District Judge's As per the Hon'ble recommendation whether the High Court's Civil Judge is fit to be certified Confidential letter as having satisfactorily completed No.A.0733/2015 dated the period of probation or 15/11/2016, Hon'ble whether his period of probation High Court has should be extended and if so, for extended the period of what period of whether his probation of services should be terminated Dr.M.H.Panchal, Principal Civil Judge and JMFC, Sayla for a further period of one year from 06/09.2017 (BOH), hence no recommendations or view of the undersigned submitted.
FOR THE PERIOD FROM 20/08/2018 TO 05/09/2018 3 Character
(a) Integrity Fair 4 Personal Characteristics (1) Personality Fair (3) General Knowledge Fair Page 67 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined (7) Diligence and industry Fair 5 The District Judge's assessment of the Civil Judges regarding his-
6 The District Judge's recommendation As per the period is whether the Civil Judge is fit to be short one hence no certified as having satisfactorily recommendation or completed the period of probation view of the or whether his period of probation undersigned is should be extended and if so, for submitted. what period of whether his services should be terminated
109. It was opined by the Unit Judge that apart from the remarks against Column No.3(a) and Column No.6, the above noted Quarterly Reports in Form- IV be communicated to the petitioner with the request to show improvement in this respect in future. Amongst the papers placed before the Standing Committee, the information recording adequacy or otherwise of the disposal submitted by the Administrative "D" Branch vide their endorsement dated 13.11.2018 was also placed on record.
110. Considering the above material, the Standing Committee had resolved as under:-
"Decision taken at the Standing Committee Meeting held on 11-12-2018:-
SUBJECT NO.12 To consider and to decide, Probation period of Dr.M.H.Panchal, Principal Civil Judge and J.M.F.C. Sayla, Dist.Surendranagar may be extended beyond 05/09/2018 (A.O.H.) or otherwise.(4th Time Page 68 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined extension).[Admn."A" Branch] Considered. It is resolved that the Probation period of Dr.M.H.Panchal, Principal Civil Judge and J.M.F.C., Sayla, Dist. Surendranagar, be extended for a period of one year with effect from 05.09.2018(A.O.H.)."
111. The fifth extension for a period of six months had been granted in the meeting of the Standing Committee held on 24.10.2019. The papers submitted before the Standing Committee records that the departmental inquiry, namely D.I.No.10 of 2016 was pending with the Inquiry Officer. The Vigilance Department had reported that a Preliminary Inquiry namely V.C.No.389/2019, initiated against the petitioner, pursuant to the decision of the Standing Committee dated 04.09.2019 was also pending. There is also a reference of the Vigilance complaint received against the petitioner and the matter being pending with the Vigilance Cell. The quarterly reports for the four quarters of the year beginning from 05.09.2018 ending with 05.09.2019 were also placed before the Standing Committee along with the information regarding adequacy or otherwise of the disposal submitted by the concerned Administrative "D"Branch vide endorsement dated 07.10.2019. The matter was placed before the Standing Committee for consideration on the question of probation clearance of the petitioner in view of the pending Departmental Inquiry, namely D.I.No.10/2016 and the Page 69 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined vigilance complaint (VC No.389 of 2019). The Standing Committee resolved that:-
"Decision taken at the Standing Committee Meeting held on 24-10-2019:-
SUBJECT NO.08. To consider and to decide, Probation Period of Dr.M.H.Panchal, Principal Civil Judge and J.M.F.C., Sayla, Dist. Surendranagar may be extended beyond 05/09/2019 (A.O.H.) or th otherwise (5 Time extension). [Admin.
"A" Branch] Considered. It is resolved that the Probation Period of Dr.M.H. Panchal, Principal Civil Judge and J.M.F.C. Sayla, Dist.
Surendranagar, be extended beyond 05/09/2019 (A.O.H.) for a further period of six months."
112. In the next two meetings of the Standing Committee held on 11.09.2020 and 08.02.2021, the matter was deferred. Thus, it is clear that after expiry of the extended period of probation for the sixth time as on 05.03.2020, the petitioner had continued in service, though there was no decision for further extension of the probation period, and no specific order had been passed by the Standing Committee to decide on the question as to whether the petitioner had satisfactorily completed the period of probation so as to confirm her in Page 70 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined service or even recording any dissatisfaction so as to discharge her from service.
113. Finally, the matter was placed before the Standing Committee on 04.02.2022 wherein the Office Note dated 24.06.2020 was placed before the Standing Committee. It was reported therein that the extended period of probation of Dr.M.H.Panchal (petitioner) as per the decision of the Standing Committee dated 24.10.2019 had been completed on 05.03.2020. The Disciplinary Inquiry, namely D.I.No.10 of 2016 was pending with the Inquiry Officer. The preliminary inquiry in the vigilance complaint, namely V.C.No.389 of 2019 was also pending.
114. An application dated 09.03.2020 and the Confidential Letters of the Principal District Judge, Surendranagar dated 08.06.2020 and 12.06.2020 regarding the conduct of the petitioner had been received which were under process, apart from three other complaints received on 06.02.2016, 02.03.2016 and 06.08.2019. The Annual Confidential Report in Form-IV for the quarters from 05.09.2019 to 05.12.2019 and from 06.12.2019 to 05.03.2020 were placed along with the information recording adequacy or otherwise of the disposal submitted by the Administrative "D" Branch vide their endorsement dated 22.06.2020.
115. Considering the said material, the Unit Judge had opined that:
The inquiry in respect of misconduct was going on since long. In the meantime the service record of the petitioner Page 71 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined aptly demonstrated that it was unsatisfactory even after giving her enough opportunities to improve. The petitioner has failed to improve her performance. Therefore, her probation which is extended from time to time, may be terminated/discharged and service may be put to an end simpliciter, reserving the right to revive the inquiries, that may be pending, in the event of termination interfered with either on the administrative side or judicial side. With this opinion of the Unit Judge, the matter was placed before the then Chief Justice on 03.07.2020, who had directed to place the same before the Standing Committee.
116. It is evident from the Minutes of the Standing Committee that two subjects at Items No.18 and 28 were placed before it in the meeting held on 04.02.2022 as under:-
On Subject No.18 Standing Committee resolved that :-
"Decision taken at the Standing Committee Meeting held on 04-02-2022:-
SUBJECT NO.18 To consider and to decide:-
1 The confirmation of Probation Period of Dr.M.H.Panchal, the then Principal Civil Judge & JMFC, Sayla, Dist. Surendranagar (now, Judge, Labour Court, (JD), Vadodara), beyond 06/03/2020, in view of the order passed by the Honourable the Chief Justice and the Honourable Mr.Justice Umesh A. Trivedi (the then Administrative Judge for Surendranagar District) below Page 72 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined Office Note dated 24/06/2020.
2 To consider:-
(i) Confidential Letter
Nos.14/2020 dated
08/06/2020, 15/2020
dated 11/06/2020 and
16/2020 dated
12/06/2020 of Mr. P.J.
Tamakuwala, 3rd
Additional Sessions
Judge, Limbdi reporting
regarding the conduct of
Dr.M.H.Panchal, the then
Principal Civil Judge and
JMFC, Sayla (Now,
Judge, Labour Court,
Vadodara) with regard to
non compliance of orders
passed by him in
Criminal Revision
Application No.24/2020,
Criminal Revision
Application No.26/2020
and Criminal Appeal
No.15/2020 respectively
and
(ii) Confidential Letter
No.2943/2020 dated
12/06/2020 of Deputy
Inspector General of
Police, Rajkot and
Confidential Letter
No.95/20 dated
12/06/2020 of
Superintendent of Police,
Surendranagar along
with its enclosures,
containing allegations
against Dr.M.H.Panchal,
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the then Principal Civil
Judge and JMFC, Sayla
(all the four letters have
been forwarded by the
Principal District Judge,
Surendranagar, vide her
Confidential Letter
Nos.B/122/2020, dated
08/06/2020, B/123/2020
dated 08/06/2020 and
12/06/2020 and
B/125/2020 and
B/126/2020 dated
18/06/2020 respectively).
[Subject Nos.1.1,1.2.I &II
was deferred in the
Standing Committee
Meeting held on
11/09/2020 dated
08/12/2021].
Resolution:
18.1 Considering the unsuitability of
Ms.M.H.Panchal, Civil Judge, (Junior Division), Labour Court, Vadodara, for the post she holds, it is resolved to recommend to the Full Court to discharge her simpliciter from service.
It is further resolved that since the extended period of probation of Ms.M.H.Panchal, Civil Judge, (Junior Division), Labour Court, Vadodara, has expired on 06/03/2020, it will stand extended till the Government issues order discharging her service.
18.2 (1) &(ii). In view of the Resolution at 18.1, subjects at 18.2(i) and (ii) need no consideration."
The Standing Committee, on overall assessment of the administrative complaints, the vigilance complaints, disposal, Page 74 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined grading, adverse entries etc. had resolved that the petitioner was unsuitable to be confirmed on the post which she held.
It is evident from the record that the petitioner had failed to keep up to the expectations in rendering the work and conduct of a Judicial officer inspite of the extension of her probation period from time to time. After due consideration of the records before the Standing Committee, which included Annual Confidential Reports, the Statement of disposal of cases as also the complaints about the conduct of the petitioner, it had extended the probation period each time with the request to the petitioner to improve her performance both towards work and conduct, but she has failed to perform to the standards of a Judicial officer. It can, thus, be seen that after taking into consideration of the overall service record of the petitioner, the Standing Committee came to the conclusion that the petitioner was not suitable for being continued in the Judicial service as a full time member.
117. It is further evident that the decision of the Standing Committee in its meeting held on 04.02.2022 was guided by the overall consideration of the work and performance of the petitioner as also her conduct as a Judicial officer. No consideration was given by the Standing Committee on the inquiry report so as to arrive at any conclusion with regard to the guilt of the petitioner in the disciplinary enquiry, which was initiated with the chargesheet dated 16.03.2017 served upon the petitioner.
118. Moreover, the record placed along with the writ petition indicates that the petitioner had participated in the inquiry proceedings and she was given full opportunity of cross-examination etc. On the Page 75 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined submission of the Written Statement of defence dated 28.08.2017, the inquiry commenced on 06.11.2017 which continued beyond 31.08.2020 the date when the statement of the petitioner was recorded. The fact that the inquiry was concluded in the meantime, or a finding had been arrived at by the Inquiry Officer on the guilt of the petitioner would be of no relevance, inasmuch, as in the facts and circumstances of the case, it is evident that the petitioner had continued in service beyond the first extended period of probation so as to give her chance to improve her work and performance while keeping continuous vigil over her work and conduct. The Annual Confidential Reports of the work and conduct of the petitioner had been "Poor", "Average" and "Fair" throughout uptil the last report of the quarter ending on 05.09.2018. The ACR's after 05.09.2018 were not filled by the Principal District Judge concerned.
119. It may further be noted that the Departmental Inquiry No.10 of 2016 initiated against the petitioner was concluded with the inquiry report dated 21.12.2020 submitted by the Principal District Judge, Vadodara and the same was placed before the Standing Committee in its meeting held on 20.01.2021, wherein it was resolved that the inquiry report be placed before the Disciplinary Committee for necessary consideration and the Chief Justice be authorised to constitute the Disciplinary Committee. Vide order dated 08.02.2021, a Committee of Two Judges of the Court was constituted, which had submitted its report on 01.09.2021. The said report was placed before the Standing Committee in the meeting dated 04.02.2022 at the Subject No.28 and without any deliberations on the same, it Page 76 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined was resolved that the report in respect of Ms.M.H.Panchal, namely the petitioner, the then 2nd Additional Civil Judge & JMFC, Savli, Vadodara, be deferred.
120. From the Minutes of Meeting of the Standing Committee on the Subject No.18 of the confirmation of probation period and letters of complaint as also the Subject No.28 to consider the report dated 01.09.2021 of the Committee in the Departmental Inquiry, namely D.I.No.10 of 2016, it appears that though the inquiry report was placed before the Standing Committee, but no decision was taken to record any conclusion as to the finding of the guilt against the petitioner. Without considering the inquiry report submitted against the petitioner, the Standing Committee taking into consideration of the overall material of the work and performance of the petitioner throughout the initial and extended period of probation in service, had decided to discharge the petitioner from service by a simpliciter order of discharge. The inquiry report submitted in the D.I.No.10 of 2016 by the Inquiry Officer, considered in the report of the two Judges Committee dated 01.09.2021, can, thus, be said to be only motive and not foundation of the decision to dispense with the services of the petitioner by passing a simpliciter order of discharge.
121. From the record it appears that on an exhaustive inquiry into the records of the meetings of the Standing Committee taking decision for extension of probation from time to time culminated in its meeting held on 04.02.2022, it cannot be said that the report of the Inquiry Officer in the Departmental Inquiry (D.I.No.10/2016) became the basis or foundation of the decisions of the Standing Committee, Page 77 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined to discharge the petitioner from service with the simpliciter order of discharge being on probation.
(iii) Termination whether Punitive and Stigmatic:-
122. However, to arrive at a conclusive opinion, we would be required to go through the decisions of the Apex Court in a long line of judgements beginning from Parshotam Lal Dhingra vs. Union of India23. The Apex Court in the said case was dealing with the question of reversion of the appellant (Parshotam Lal Dhingra) on certain adverse remark against him in his confidential report, while he was officiating on a higher post. Answering the said question on an elaborate discussion on Article 311 of the Constitution and the judicial decisions cited before the Bench, it was observed in paragraph No."25" that:
"25.................................................................. ...........The net result is that it is only in those cases where the government intends to inflict those three forms of punishments that the government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It follows, therefore, that if the termination of service is sought to be brought about otherwise than by way of punishment, then the government servant whose service is so terminated cannot claim the protection of Article 311(2) ................"
123. It was further considered in paragraphs No."26" and "27" as under:-
23 AIR 1958 SC 36:1957 SCC OnLine SC 5.Page 78 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024
NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined "26.The foregoing conclusion, however, does not solve the entire problem, for it has yet to be ascertained as to when an order for the termination of service is inflicted as and by way of punishment and when it is not. It has already been said that where a person is appointed substantively to a permanent post in government service, he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the service rules read with Article 311(2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant's rights and brings about a premature end of his employment. Again where a person is appointed to a temporary post for a fixed term of say five years his service cannot, in the absence of a contract or a service rule permitting its premature termination be terminated before the expiry of that period unless he has been guilty of some misconduct, negligence, inefficiency or other disqualifications and appropriate proceedings are taken under the rules read with Article 311(2).......xxx........... xxx...........xxx...........xxx...........xxx........xxx...... xxx.................where a person is appointed to a permanent post in a 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, for the government servant, so appointed, has no right to continue to hold such a post any more than the servant employed on probation by a private employer is entitled to do. Such a termination does not operate as a forfeiture of any right of Page 79 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined the servant to hold the post, for he has no such right and obviously cannot be a dismissal, removal or reduction in rank by way of punishment....xxx...........xxx...xxx....................xx x...........xxx...........xxx...........xxx........xxx......xxx .................Shortly put, the principle is that when a servant has right to a post or to a rank either under the terms of the contract of employment, express or implied, or under the rules governing the conditions of his service, the termination of the service of such a servant or his reduction to a lower post is by itself and prima facie a punishment, for it operates as a forfeiture of his right to hold that post or that rank and to get the emoluments and other benefits attached thereto. But if the servant has no right to the post, as where be is appointed to a post, permanent or temporary either on probation or on an officiating basis and whose temporary service has not ripened into a quasi-permanent service as defined in the Temporary Service Rules, the termination of his employment does not deprive him of any right and cannot, therefore, by itself be a punishment. One test for determining whether the termination of the service of a government servant is by way of punishment is to ascertain whether the servant, but for such termination, had the right to hold the post. If he had a right to the post as in the three cases hereinbefore mentioned, the termination of his service will by itself be a punishment and he will be entitled to the protection of Article 311. In other words and broadly speaking, Article 311(2), will apply to those cases where the government servant, had he been employed by a private employer, will be entitled to maintain an action for wrongful dismissal, removal or reduction in rank. To put it in another way, if the government has, by contract, express or implied, or, under the rules, the right to terminate the employment at any Page 80 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined time, then such termination in the manner provided by the contract or the rules is, prima facie and per se, not a punishment and does not attract the provisions of Article 311."
27. It does not, however, follow that, except in the three cases mentioned above,, in all other cases, termination of service of a Government servant who has no right to his post, e.g., where he was appointed to a post, temporary or permanent, either on probation or on an officiating basis and had not acquired a quasi- permanent status, the termination cannot, in any circumstance, be a, dismissal or removal from service by way of punishment. Cases may arise where the government may find a servant unsuitable for the post on account of misconduct, negligence, inefficiency or, other disqualification. If such a servant was appointed to a post, permanent or temporary, either on probation or on an officiating basis, then the very transitory character of the employment implies that the employment was terminable at any time on reasonable notice given by the Government. Again if the servant was appointed to a post, permanent or temporary, on the express condition or term that the employment would be terminable on say a month's notice as in the case of Satish Chander Anand v. The Union of India24, then the Government might at any time serve the requisite notice. In both cases the Government may proceed to take action against the servant in exercise of its powers under the terms of the contract of employment, express or implied, or under the rules regulating the conditions of service, if any be applicable, and ordinarily in such a situation the Government will take this course. But the Government may take the view that a simple 24 1953 AIR 250 Page 81 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined termination of service is not enough and that the conduct of the servant has been such that he deserves a punishment entailing penal consequences. In such a case the Government may choose to proceed against the servant on the basis of his misconduct, negligence, inefficiency or the like and inflict on him the punishment of dismissal, removal or reduction carrying with it the penal consequences. In such a case the servant will be entitled to the protection of Article 311(2)."
124. It is, thus, held that the real test for determining whether the reduction from officiating higher rank to his substantive lower rank is or is not by way of punishment is to find out that if the order for reduction also visits the employee with any penal consequences. The use of the expression "terminate" or "discharge" is not conclusive. In spite of such innocuous expressions, the Court has to apply two tests:-
"28......xxx...........xxx...........xxx...........xxx.......... ........xxx......namely, (1) whether the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences of the kind hereinbefore referred to? If the case satisfies either of the two tests then it must be held that the servant has been punished and the termination of his service must be taken as a dismissal or removal from service or the reversion to his substantive rank must be regarded as a reduction in rank and if the requirements of the rules and Article 311, which give protection to Government servant have not been complied with, the termination of the service or the reduction in rank must be held to be wrongful and in violation of the constitutional right of the servant."Page 82 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024
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125. In the State of Orissa and another vs. Ram Narayan Das 25 the Apex Court was dealing with the question about the discharge of services of a probationer in view of the adverse reports received against him, by serving a notice calling upon him to show cause as to why he should not be discharged from service "for gross negligence of duties and unsatisfactory work".
126. In the notice, instances of neglect of duty and of misconduct, namely acceptance of illegal gratification and fabrication of official record were set out. The challenge to the order of discharge was on the grounds that the probationer was not given reasonable opportunity to show cause against the action proposed in regard to him within the meaning of Article 311(2) of the Constitution. The High Court set aside the order by holding that the appointing authority had taken into consideration allegations of corruption in passing the impugned order and had refused to give the employee an opportunity to cross-examine witnesses on whose statements the charge of misconduct was made. It was held by the High Court that by discharging the respondent from service without holding an inquiry and without complying with the requirements of Article 311(2) of the Constitution an "indelible stigma affecting his future career" has been cast.
127. While dealing with the same, the Apex Court had noted that the respondent therein was undoubtedly a probationer at the time when proceedings were started against him and when he 25 AIR 1961 SC 177:1960 SCC OnLine 36 Page 83 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined was discharged from service and he had no right to the post held by him. Considering the service rules therein, it was noted that the notice to show cause whether the employment of the respondent should be terminated was obligatory. Though in the notice, the allegations against the respondent were set out, but a formal order communicated to the respondent stated that the respondent was discharged from service for unsatisfactory work and conduct. The reasons given in the order of discharge indicated that the notice was served as per the service rules for ascertaining whether the probationer should be confirmed or his employment be terminated. The order was terminating the employment of the respondent as a probationer and it was not an order dismissing him from service. It was, thus, noted in Paragraph No."11" that:-
"11. In Parshottam Lal Dhingra vs. Union of India23 this Court " this Court by a majority held that if an officer holding an officiating post had no right under the rules governing his service to continue in it, and such appointment under the general law being terminable at any time on reasonable notice, the reversion of the public servant to his substantive post did not operate as a forfeiture of any right: that order "visited him with no evil consequences' and could not be regarded as a reduction in rank by way of punishment. Bose, J., who disagreed with the majority observed that the real test was whether evil consequences over and above those that ensued from a contractual termination, were likely to ensue as a consequence of the impugned order: if they were, Article 311 of the Constitution would be attracted even though such evil consequences were not prescribed as penalties under the Rules......"Page 84 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024
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128. It was held in Paragraphs No."12,13 and 15" as under:-
"12. The respondent had no right to the post held by him. Under the terms of his employment, the respondent could be discharged in the manner provided by Rule 55-B. Again mere termination of employment does not carry with it " any evil consequences " such as forfeiture of his pay or allowances, loss of his seniority, stoppage or postponement of his future chances of promotion etc. It is then difficult to appreciate what " indelible stigma affecting the future career " of the respondent was cast on him by the order discharging him from employment for unsatisfactory work and conduct. The use of the expression "discharge" in the order terminating employment of a public servant is not decisive : it may, in certain cases amount to dismissal. If a confirmed public servant holding a substantive post is discharged, the order would amount to dismissal or removal from service; but an order discharging a temporary public servant may or may not amount to dismissal. Whether it amounts to an order of dismissal depends upon the nature of the enquiry, if any, the proceedings taken therein and the substance of the final order passed on such enquiry.
13. Where under the rules governing a public servant holding a post on probation, an order terminating the probation is to be preceded by a notice to show cause why his service should not be terminated, and a notice is issued asking the public servant to show cause whether probation should be continued or the officer should be discharged from service the order discharging him cannot be said to amount to dismissal involving punishment. Undoubtedly, the Government may hold a formal enquiry against a probationer on charges of misconduct with a view to dismiss him from service, and if an order terminating his employment is made in such an enquiry, without giving him reasonable opportunity to show cause Page 85 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined against the action proposed to be taken against him within the meaning of Article 311(2) of the Constitution, the order would undoubtedly be invalid."
xxx xxx "15.This proposition, in our judgment, does not derogate from the principle of the other cases relating to termination of employment of probationers decided by this court nor is it inconsistent with what we have observed earlier. The enquiry against the respondent was for ascertaining whether he was fit to be' confirmed. An order discharging a public servant, even if a probationer, in an enquiry on charges of misconduct, negligence, inefficiency or other disqualification, may appropriately be regarded as one by way of punishment, but an order discharging a probationer following upon an enquiry to ascertain whether he should be confirmed, is not of that nature. In Gopi Kishore Prasad's28 case, the public servant was discharged from service consequent upon an enquiry into alleged misconduct, the Enquiry Officer having found that the public servant was "
unsuitable " for the post. The order was not one merely discharging a probationer following upon an enquiry to ascertain whether he should be continued in service, but it was an order as observed by the court " clearly by way of punishment". There is in our judgment no real inconsistency between the observations made in Parshotam Lal Dhingra's case23 (2) and Gopi Kishore Prasad's28 case (1). The third proposition in the latter case refers to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed. Therefore the fact of the holding of an enquiry is not decisive of the question. What is decisive is whether the order is by way of punishment, in the light of the tests laid down in Parshotam Lal Dhingra's case23"
Page 86 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined
129. A distinction, thus, has been drawn to the effect that an order discharging a public servant, even if a probationer, consequent upon an enquiry into the charges of misconduct, negligence, inefficiency or other disqualification, may appropriately be regarded as one by way of punishment. But an order discharging a probationer following upon an enquiry to ascertain whether he should be continued in service or confirmed, is not of that nature.
130. Taking note of the observations made in Purshotam Lal Dhingra23 (supra) and in State of Bihar vs. Gopi Kishore Prasad,26 it was held in Ram Narayan Das24 (supra) that the third proposition in the latter case ( Gopi Kishore Prasad's case) refers to an enquiry into allegations of misconduct or inefficiency with a view, if they were found established, to impose punishment and not to an enquiry whether a probationer should be confirmed. Therefore, the fact of the holding of an enquiry is not decisive of the question. What is decisive is whether the order is by way of punishment, in the light of the tests laid down in Purshotam Lal Dhingra's23 case.
131. In the State of Punjab and another vs Sukh Raj Bahadur 27, the Apex Court on consideration of a long line of decisions on Purshotam Lal Dhingra23 (supra), Madan Gopal vs. State of Punjab28, Jagdish Mitter vs. Union of India 29, State of Bihar vs. Gopi Kishore Prasad25 (supra) as noted in the above 26 AIR 1960 SC 689 27 1968 AIR SC 1089 28 1963 AIR 531 29 (1964) AIR 1964 SC 449 Page 87 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined referred observations in Ram Narayan Das's24 case (supra), concluded in Paragraph No."17" as under:-
"(17) 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. In 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 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."
132. In Samsher Singh1 (supra), the Apex Court on consideration of the decision in Purshotam Lal Dhingra23(supra), noticing the observations of Das, C.J., has observed in Paragraph No."62" that:-
"62........There are, however, two important observations of Das, C.J., in Dhingra's23 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 Government is wholly irrelevant. The other is that Page 88 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined 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 hand, if termination is founded on misconduct it is objective and is manifest."
133. It was further observed in Paragraph No."63,64,65 and 67"
as under:-
"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 Page 89 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined 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 vs.Union of India 28 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 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. Ram Narayan Das25. 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 Punjab28. In R. C. Lacy v. State of Bihar & Ors.30 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 India31) 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 v. Union of India 32. 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 v. Union of India33)."
30 1963 SCC OnLine SC 1 31 1963 AIR SC 1552 32 1964 AIR SC 1854 33 A.I.R. 1964 S.C. 449 Page 90 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined xxx xxx xxx
67. An order terminating the services of a temporary servant or probationer under the Rules of Employment and without anything more will not attract Article 311. Where a departmental enquiry is contemplated and if an enquiry is not in fact proceeded with Article 311 will not be attracted unless it can be shown that the order though unexceptionable in form is made following a report based on misconduct. (See State of Bihar v. Shiva Bhikshik34 ."
134. In Samsher Singh1 (supra) the factual aspect was that the appellant Shamsher Singh was terminated by issuing a show cause notice as to why his services should not be terminated as he was found unsuitable for the job. He had shown cause by replying to the charges. It was noted that the Rule 9 of the Service Rules therein made it incumbent on the authority that services of a probationer can be terminated on a specific fault or on account of unsatisfactory record implying unsuitability. In the facts and circumstances of the case, it was held that the order of termination of the appellant Samsher Singh was one of punishment. The authorities who were required to find out the suitability of the appellant had engaged themselves with the matters, which were really trifle.
2135. In Anoop Jaiswal (supra), taking note of the long line of decisions from Parshotam Lal Dhingra23 (supra) to Samsher Singh1(supra), it was observed in Paragraph No."12" as under:-
34 (1970) 2 SCC 871 Page 91 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined "12. It is, therefore, now well settled that where the form of the order is merely a camouflage for an order of dismissal for misconduct it is always open to the Court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form is merely a determination of employment is in reality a cloak for an order of punishment, the Court would not be debarred, merely because of the form of the order, in giving effect to the rights conferred by law upon the employee."
136. The Apex Court had further taken into consideration the facts of the said case in Paragraphs No."13,14 and 15" in the following manner:-
"13. In the instant case, the period of probation had not yet been over. The impugned order of discharge was passed in the middle of the probationary period. An explanation was called for from the appellant regarding the alleged act of indiscipline, namely, arriving late at the Gymansium acting as one of the ring leaders on the occasion and his explanation was obtained. Similar explanations were called for from other probationers and enquiries-were made behind the back of the appellant. Only the case of the appellant was dealt with severely in the end. The cases of other probationers who were also considered to be ring leaders were not seriously taken note of. 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 Page 92 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined 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 ill Article 311(2) of the Constitution.
14......On going through the above record before the Court and taking into account all the attendant circumstances we are satisfied that the Director wished to make the case of the appellant an example for others including those other probationers who were similarly situated so that they may learn a lesson therefrom.
15. A narration of the facts of the case leaves no doubt that the alleged act of misconduct on June 22, 1981 was the real foundation for the action taken against the appellant and that the other instances stated in the course of the counter-affidavit are mere allegations which are put forward only for purposes of strengthening the defence which is otherwise very weak. The case is one which attracted Article 311(2) of the Constitution as the impugned order amounts to a termination of service by way of punishment and an enquiry should have been held in accordance with the said constitutional provision. hat admittedly having not been done, the impugned order is liable to be struck down........"
137. In the peculiar facts and circumstances of the said case, as noted above, the order discharging the appellant therein from service had been set aside.
138. In Radhey Shyam Gupta14 (supra), the Apex Court had considered that there were two lines of judgements to deal with the question as to whether after enquiry, it was permissible for the employer to pass a simpliciter order of termination or discharge in certain cases of temporary Page 93 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined servants and probationers. In certain cases, the Apex Court had taken the view that if the ex-parte inquiry or report are the Motive for the termination order, then the termination order is not to be called punitive merely because principles of natural justice have not been followed. On the other hand, there are another line of cases, where the Court had held that the facts revealed in the enquiry are not the motive but the foundation for the termination of services of the temporary servant or the probationer and hence punitive as principles of natural justice have not been followed, and such orders are to be declared void. It was held therein that for finding out whether a given case falls within former of the above two categories, it is permissible for the Court to go behind the order and look into the record of the proceedings, antecedents and attending circumstances culminating in the order of termination.
139. Noticing the development of law from stage to stage beginning from Parshotam Lal Dhingra23 (supra), developing with Gopi Kishore Prasad25 (supra), Ram Narayan Das24 (supra), Madan Gopal27 (supra), Jagdesh Mitter (supra), Samsher Singh1 (supra), it was observed therein that doubts or the difficulties as to what was the 'motive' or 'foundation' even after Samsher Singh's case were removed in Gujarat Steel Tubes Limited Vs. Gujarat Steel Tubes Mazdoor Sabha 35. Relevant paragraph No."27" of Radhey Shyam Gupta14 be extracted hereinunder:-
35 1980(2) SCC 593 Page 94 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined "27. If there was any difficulty as to what was 'motive' or 'foundation' even after Shamsher Singh's case, the said doubts, is our opinion, where removed in Gujarat Steel Tubes vs. Gujarat Steel Tubes Mazdoor Sangh (1980 (2) SCC 593) 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 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 (of SCR): (at p.1911 of AIR):
"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 process but must be grounded on the substantive reasonf or 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 this test, it cannot be called a punishment. To put if 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 is nature. Nor the fact that, after being satisfied of the quilt, the master abandons the enquiry and proceeds to terminate. Given an alleged misconduct and a live Page 95 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined nexus between it and the termination of service the conclusion is dismissal, even if full benefits as on simple termination, are given and non-inqurious terminology is used.
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."
140. It was further noted in paragraph No."28" that:-
"28.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 but decides merely not to continue a dubious employee. The master does not want to decide or to 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."
141. After noticing the above distinction, the Apex Court in Radhey Shyam Gupta14 (supra) had proceeded to refer to the cases where the departmental inquiry was started, then dropped and a simple order of termination was passed. Referring to Ram Narayan Das24 (supra), where the termination of services of probationer on the basis of an assessment that his work was not satisfactory, was held not to Page 96 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined be punitive, inasmuch as, the assessment was merely the motive and not the foundation, it was observed that the reason why the allegations were held to be motive was that the assessment was not done with the object of finding out any misconduct on the part of the officer. It was done only with a view to decide whether he was to be retained or continued in service. In all these cases the allegations against the employee merely raised a cloud on his conduct.
142. It was further noted that as pointed out by Krishna Iyer, J.
in Gujarat Steel Tubes Limited29 (supra) 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.
143. It was held that in a case where the departmental inquiry though initiated by the employer, but was stopped and where the allegations whose truth has not been found were merely the motive. 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 officers and where on the basis of such a report Page 97 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined the termination order is passed, such an order will be violative of the principles of natural justice, inasmuch as, the purpose of the enquiry was to find out the truth of the allegation with a view to punish him and not merely to gather evidence for future continuance. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. It was observed that these are obviously not the cases where employer feel that there is a mere cloud against the employee's conduct, but are cases where the employer virtually accepted the definitive and clear findings of the Inquiry officer, which are all arrived at behind the back of the employee, even though the 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.
144. This principle of understanding the distinction in the concept of 'motive' and 'foundation', elaborated by the Apex Court in Radhey Shyam Gupta14 (supra) was further clarified in Dipti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and others 36, while dealing with the question of validity of the appellant's termination of probation. Referring to the events that took place during the period of probation, the Apex Court framed three issues on the contentions of the counsels for the parties. Point No.1 for consideration was as to (i) In what circumstances, the termination of probationer's services can be said to be 36 (1999)3 SCC 60 Page 98 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined founded on misconduct and in what circumstances could it be said that the allegations were only the motive. To answer, the discussion with reference to previous decisions in Ram Narayan Das, Samsher Singh, post- Samsher Singh case laws were referred on the detailed examination of what is 'motive' and what is 'foundation' on which innocuous order is based.
145. The Principles laid down by Krishna Iyer, J. in Gujarat Steel Tubes Limited39 (supra) as to "foundation" and "motive' were noted in paragraph No."20" as under:-
"20. This Court in that connection referred to the principles laid down by Krishna Iyer, J. in Gujarat Steel Tubes Ltd.vs. Gujarat Steel Tubes Mazdoor Sabha. At to "foundation", it was said by Krishna Iyer, J. as follows:(SCC p.617, para 53) "[A] termination effected because of the master is satisfied of the misconduct and of the consequent desirability of terminating the service of the delinquent servant, is a dismissal, even if he had the right in law to terminate with an innocent order under the standing order of otherwise. Whether, in such a case, the grounds are recorded in 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-injurious terminology is used."
(emphasis supplied) and as to motive: (SCC Public Prosecutor.617-18, para 54) Page 99 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined "54.On the contrary, even if there is a 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 cut-back on his full terminal benefits is found. For, in fact, misconduct is not then the moving factor in the discharge.
(emphasis supplied) As to motive, one other example is the case of State of Punjab v. Sukh Raj Bahadur 27 where a charge- memo for a regular enquiry was served, reply given and at that stage itself, the proceedings were dropped and a simple termination order was issued. It was held, the order of simple termination was not founded on any findings as to misconduct. In that case, this Court referred to A.G.Benjamin vs. Union of India37 where a charge-memo was issued, explanation was received, an enquiry officer was also appointede but before the enquiry could be completed, the proceedings were dropped and a simple order of termination was passed. The reason for dropping the proceedings was that "departmental proceedings will take a much longer time and we are not sure whether after going through all the foundation, we will be able to deal with the accused in the way he deserves". The termination was upheld."
146. It was, thus, concluded in Paragraphs No."21" and "22" as under:-
37 (1966) SCC OnLine SC 4 Page 100 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined "21. If findings were arrived at in enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as `founded' on the allegations and will be bad. But if the enquiry was not held, no finding were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such a circumstance, the allegations would b e a motive and not the foundation and the simple order of termination would be valid.
22. In the light of the above principles laid down in R.S.Gupta case14 we do not think anything more is to be added."
147. All the above noted decisions were considered by Ruma Pal, J. while speaking for the Bench in Pavanendra Narayan Verma9 (supra) and it was noted in Paragraphs No."19" and "20" that:-
"19. Thus some Courts have upheld an order of termination of a probationer's services on the ground that the enquiry held prior to the termination was preliminary and yet other courts have struck down as illegal a similarly worded termination order because an inquiry had been held. Courts continue to struggle with semantically indistinguishable concepts like "motive" and "foundation"; and terminations founded on a probationer's misconduct have been held to be illegal while terminations motivated by the probationer's misconduct have been upheld. The decisions are legion and it is an impossible task to find a clear path through the jungle of precedents."Page 101 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024
NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined "20.As observed by Alagiriswamy, J. in S.P.Vasudeva vs. State of Haryana and others38:
"After all no government servant, a probationer or temporary, will be discharged or reverted, arbitrarily, without any rhyme or reason. If the reason is to be fathomed in all cases of discharge or reversion, it will be difficult to distinguish as to which action is discharge or reversion simpliciter and which is by way of punishment. The whole position in law is rather confusing."
148. The Apex Court has culled out three judicially evolved tests to determine whether the termination can be said to be founded on probationer's misconduct or motivated with the aid of the observations in Paragraph No."64" of Samsher Singh1 (supra). Relevant Paragraphs No."21" and "22" read as under:-
"21.One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.
22. The three factors are distinguishable in the following passage in Samsher Singh v. State of Punjab1 where it was said:
"64. Before a probationer is confirmed the authority concerned is under an obligation to 38 1976(1) SCC 236 Page 102 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined 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."
(emphasis supplied)
149. The Apex Court has further proceeded to take note of principles stated in previous decisions in paragraphs Nos."23,24,25,26,27" as under:-
"23.Thus in Benjamins case38(supra), complaints had been received against a temporary employee. A notice had been sent to the employee to show cause why disciplinary action should not be taken against him. The inquiry officer was appointed but before the inquiry was completed, the services of the employee were terminated with one month's salary in lieu of notice. The Constitution Bench upheld the order of termination and drew a distinction between a preliminary inquiry and a departmental inquiry. It Page 103 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined was held that a preliminary inquiry held to satisfy the Government whether there was no reason to dispense with the services of the temporary employee should not be mistaken for a departmental inquiry held to decide whether punitive action should be taken.
24. In State of U.P. and Another V. Kaushal Kishore Shukla39, the employee had been appointed on a temporary basis for a fixed tenure. During the period of his service, adverse entries were made in his character roll. Complaints were also received by the auditors of the employer. A summary inquiry was held. It was found that the auditor's complaint was correct. The employee was transferred to another post. He did not join and the employer terminated his services. This Court, while upholding the order of termination, said that the mere fact that prior to the issue of the termination an inquiry was held against the employee did not make the order of termination into one of punishment.
25. In Radhey Shyam Gupta v. U.P. State Agro Industries Corporation Ltd. and Another 14 a full- scale inquiry was held into the allegations of bribery against a temporary employee. The Court set aside the termination because it found that the report submitted was not a preliminary inquiry report but it was in fact a final one which gave findings as to the guilt of the employee.
26. In Dipti Prakash Banerjee V. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta and Others the termination order itself referred to three other letters. One of the letters explicitly referred to misconduct on the part of the employee and also referred to an Inquiry Committee's report, which report in its turn had found that the employee was guilty of misconduct. The termination was held to be stigmatic and set aside.
39 (1991) 1 SCC 691 Page 104 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined
27. The case of Chandra Prakash Shahi v. State of U.P.40 related to a constable who was on probation after successfully completing his training. The constable completed his period of probation without blemish. One year later, his services were terminated by issuance of a notice in terms of Rule 3 of the U.P. Temporary Government Servants (Termination of Service) Rules, 1975. An inquiry was held into the allegations of misconduct. The Court found as a fact that the inquiry was not held to judge the suitability of the constable but with a view to punish him. The order was held to be punitive and set aside."
150. In paragraph No."28", it was concluded that:-
"28. Therefore, whenever a probationer challenges his termination the court's first task will be to apply the test of stigma or the "form" test. If the order survives this examination the "substance" of the termination will have to be found out."
151. From the decision in Pavanendra Narayan Verma9 it can, thus, be noted that the first test to be applied whenever a probationer challenges his termination is the test of "stigma" or "form" test. If the termination order survives this examination, "substance" of the termination will have to be found out.
152. The Apex Court has further clarified as to what language in a termination would amount to stigma, so as to see as to whether the first test of 'stigma' or 'form' is cleared or not in the facts of the case before it. It was observed that 40 (2000) 5 SCC 152 Page 105 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined generally speaking when the probationer's appointment is terminated, it means that the probationer is unfit for the job whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination order is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment is also not stigmatic. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job. Referring to Dipti Prakash Banerjee30 (supra), it was noted in paragraph No."30" that:-
"30. As was noted in Dipti Prakash Banerjee v. Satyendra Nath Bose National Centre for Basic Sciences40 (supra): (SCC p.73, para 28) "28. At the outset, we may state that in several cases and in particular in State of Orissa v. Ram Narayan Das, it has been held that use of the word 'unsatisfactory work and conduct' in the termination order will not amount to a stigma."
153. The Apex Court in Pavanendra Narayan Verma9 then reverted to the language used in the order of termination before it, wherein it was stated that "appellant's work and conduct has not been found to be satisfactory". It was held that these words are clearly falling within the class of non-stigmatic orders of termination. It is, therefore, safe to conclude that the impugned order is not ex facie stigmatic.
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154. It was also held that the mere fact that the enquiry was held prior to the order of termination would not turn the otherwise innocuous order into one of punishment. An employer is entitled to satisfy itself as to the competence of a probationer to be confirmed in service and for this purpose satisfy itself fairly as to the truth of any allegation that may have been made about the employee. Noticing the charge sheet and the enquiry report submitted therein, it was held that none of the three factors catalogued therein for holding that the termination order was in substance punitive existed there.
155. In Chaitanya Prakash11 (supra), the Court was dealing with the question as to whether the order terminating the services of the appellant therein during the period of probation was an order of termination simpliciter due to unsatisfactory service or "stigmatic" due to misconduct.
156. We find it relevant to note the facts of the case before the Apex Court as stated in Paragraph No."15" therein as under:-
"15.After making a total appraisal of his performance, a report was submitted to the Board of Directors by Appellant 1. The record also discloses that the Board of Directors held a meeting and in that meeting they not only considered the Performance Assessment Report prepared by the Appellant 1 but also perused the entire service record of the respondent, and thereafter took a conscious and considered decision of terminating his service due to unsatisfactory work. The aforesaid decision of Page 107 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined the Board of Directors of Appellant 2 was communicated to the respondent under the impugned order dated 29-11-1999. The respondent was not confirmed in the post of Executive Director (Marketing) and he continued to be on probation during which period his service could be terminated for unsatisfactory work and for doing so it was not necessary for the appellants to institute departmental proceedings or to give an opportunity of hearing to the respondent. But the fact remains that a number of communications were issued to the respondent by Appellant 1 bringing to his notice his dismal performance and unsatisfactory work with advice to prove his performance."
157. Referring to the decision of the Apex Court in Abhijit Gupta vs S.N.B. National Centre, Basic Sciences 41, it was then observed that it is no longer res integra that even if the order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. The facts noted in Abhijit Gupta45 (supra) were that the petitioner issued communications to improve his performance in the area of his duties and despite such communications, his service was found to be unsatisfactory. In the result, the letter was issued to him pointing out that his service was found to be unsatisfactory and that he was not suitable for confirmation and, therefore, his probation period was not extended and his service was terminated. The challenge to the said termination order on the ground that the same was stigmatic for alleged misconduct was negatived by the Apex 41 (2006) 4 SCC 469 Page 108 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined Court therein and the termination order was upheld. The Apex Court had considered as to what will be the real test to be applied in a situation where an employee is removed by an innocuous order of termination, i.e. whether he is discharged as unsuitable or he is punished for his misconduct. With reference to the decision of the Apex Court in Allahabad Bank Officers Association vs. Allahabad Bank 42 , it was noted therein in Paragraph No."21" as under:-
"14...As pointed out in this judgement, expressions like 'want of application', 'lack of potential' and 'found not dependable' when made in relation to the work of the employee would not be sufficient to attract the charge that they were stigmatic and intended to dismiss the employee from service."
158. In Rajesh Kohli (supra), relying upon Pavanendra Narayan Verma9 (supra), it was noted in Paragraph Nos.23 & 24 as under:-
"23.This position is no longer res Integra and it is well- settled that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI Of Medical Sciences reported in MANU/ SC/0705/2001 : (2002) 1 SCC 520, this Court has explained at length the tests that would apply to determine if an order terminating the services of a probationer is stigmatic. On the facts of that case it was held that the opinion expressed in the termination order that the probationer's "work and conduct has not been found satisfactory" was not ex facie stigmatic and in such circumstances the 42 1996 (4) SCC 504 Page 109 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined question of having to comply with the principles of natural justice do not arise.
24. In this case court had the occasion to determine as to whether the impugned order therein was a letter of termination of services simpliciter or stigmatic termination.................xxx.....xxxx.............xxx.......
(emphasis supplied) Noticing the judgements of the Apex Court in Chaitanya Prakash11 and State of Punjab vs. Bhagwan Singh 43, it was further noted in paragraphs No.'26" and "27" that:-
"26. In the case of Chaitanya Prakash11, the services of respondent were terminated by the appellant company. During the period of probation, his services were not found to be satisfactory and he was also given letters for improvement of his services and his period of service was also extended and ultimately the company terminated him. This Court after referring to a series of cases held that the impugned order of termination of respondent is not stigmatic.
27.In the case of State of Punjab v. Bhagwan Singh 44 this Court at paragraphs 4 & 5 held as follows: -
"4. ........ In our view, when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma.
5. The other sentence in the impugned order is, that the performance of the officer on the whole 432002(9) SCC 636 44 (2002) 9 SCC 636 Page 110 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined was "not satisfactory". Even that does not amount to any stigma."
159. It was finally held in the facts of the said case ( Rakesh Kolhi)10 that the order of termination is a fall out of unsatisfactory services adjudged on the basis of overall performance and the manner in which the appellant conducted himself. Such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive. On consideration of the case, it was noted that against the appellant therein who was posted as Principal District Judge and Sessions Judge in District: Kargil, there were complaints of abusing the employees and creating a lot of problems at the District. These matters were recorded in the personal records of the appellant. After the completion of initial period of two years of probation, his records were placed before the Full Court for consideration of his case for confirmation or extension of period of probation or otherwise. The Full Court resolved that the services of the appellant were not satisfactory and, thus, the probation was not extended and his services were dispensed with.
160. The order of the High Court recommending for termination based on the resolution of the Full Court,and the termination order issued by the Government were challenged on the ground that they were stigmatic orders. It was held therein that whether or not the probation period could be or should be extended or service of the appellant should be confirmed, Page 111 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined was required to be considered by the Full Court or the High Court and while doing so necessarily, the service records of the appellant were required to be considered and if from the service records it was disclosed that the service of the petitioner was not satisfactory, it was open for the Full Court to record such satisfaction regarding his unsatisfactory service. Even mentioning the same in the order would not amount to casting any aspersion on the appellant, nor it could be said that stating in the order that his service was unsatisfactory amounts to a stigmatic order.
161. Similar position of law was noted in the H.F.Sangati 12(supra) in paragraphs No."9" and "10" as under:-
"9. In the two cases at hand we find the Administrative Committee of the High Court took into consideration all the relevant material and thereafter formed an opinion as to the unsuitability of the two appellants to hold the post of Munsifs, which opinion was communicated to and upheld and accepted by the Full Court of the High Court. Pursuant thereto, the State Government issued the impugned order of discharge from service.
10. In our opinion the impugned order does not cast any stigma on the appellants. All that has been said in the impugned order is that the appellants were unsuitable to hold the post of Munsifs. It is pertinent to note that Rule 6 contemplates a probationer being discharged from service on one or more of the following grounds : (i) in terms of a condition imposed by the Rules, (ii) in terms of the order of appointment, or (iii) on account of unsuitability of the appointee for the service or post. Sub-rule (2) of Rule 6 requires an order discharging the probationer to indicate the grounds for the Page 112 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined discharge. It also provides that such indicating of the grounds for the discharge in the order would not require any formal proceedings under the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 being held. The impugned order of discharge has been passed in strict compliance with the requirements of Rule 6. It does not cast any stigma on the appellants nor is it punitive. There was, thus, no requirement to comply with the principles of natural justice, much less to be preceded by any formal proceedings of inquiry before making the order."
(iv) Conclusion:-
162. After elaborate discussion on the test as to when termination of a probationer can be said to be stigmatic and punitive to ascertain, in the fact of the instant case, as to whether the innocuous order of termination regarding the services of the petitioner being unsuitable to the post is stigmatic or punitive, we find that the clear path through a long line of precedents has been shown by the Apex Court in Pavanendra Narayan Verma9 (supra) with the statement in Paragraph No."21" as noted hereinbefore, wherein it is held that to determine whether in substance an order of termination is punitive, it is to be seen whether prior to the termination there was; (a) a full scale formal inquiry; (b) into allegations involving moral turpitude or misconduct (c) which culminated in a finding of guilt. If only all the above three factors are present in a case, the termination order can be held to be punitive irrespective of the "form" of the termination order.
Page 113 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined Further the first task of the Court is to apply the test of stigma or "form" test. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job. If the order survives this first test, then, "substance" of the termination will have to be found out.
163. Applying the above-noted judicially evolved tests, we find in the facts of the instant case that:
(i) The termination order does not indict the petitioner for any misconduct.
(ii) Mere fact that prior to the issuance of the order of termination, an inquiry against the petitioner in respect of the allegations in the report of the Principal District Judge was held, does not change the nature of the order of termination simpliciter into that of punishment, inasmuch as, after the inquiry, the competent authority, namely the Standing Committee of the High Court, took no steps to form any opinion on the inquiry report. Instead it exercised its power to terminate the petitioner's services by an innocuous order in accordance with the service rules. The Disciplinary Inquiry though was conducted by giving full opportunity to the petitioner to participate, but the disciplinary authority, namely the Standing Committee decided not to proceed to punish the petitioner. The inquiry report was not considered by the Standing Committee namely the disciplinary authority to record any finding of guilt against the petitioner.Page 114 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024
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164. As held by the Apex Court in Ram Narayan Das24 (supra), the fact of holding an inquiry is not decisive. What is decisive is whether the order is by way of punishment. Mere holding of inquiry into the allegations involving misconduct would not be sufficient to hold the termination order which is otherwise a simpliciter order of discharge, as punitive, in as much as, the Disciplinary Inquiry, into the present case, had not been culminated into the finding of guilt. One of the three factors in the tests laid down in Pavendra Narayan Verma9 (supra) to examine the substance of the termination order, is missing in the present case and hence, the termination of services of the petitioner cannot be said to be punitive.
165. The termination order, in the instant case, does not survive the first test of "stigma" or the "form" test, as mere mentioning of the words "unsuitable for the post held by the petitioner" would not make the termination order stigmatic both in the "form" and in "substance". The termination order of simpliciter discharge of services of the petitioner passed on the basis of the resolution of the Standing Committee on consideration of overall service record of the petitioner, cannot be said to be either "stigmatic" or "punitive" or both.
166. At the cost of repetition, it may be stated that it is not a case of impulsive decision of the Standing Committee based on the inquiry report submitted by the Inquiry Officer in a full fledged departmental inquiry, wherein the petitioner was Page 115 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined afforded full opportunity of hearing. The facts of the case on perusal of the original records placed before us clearly show that the purpose of inquiry was to ascertain whether the petitioner should be retained in service or not, inasmuch as, the Standing Committee was not satisfied with the track record of the work and performance of the petitioner. The orders of extension of the period of probation were passed with a view to assess the performance of the petitioner, which had not been improved over the period of 8½ years. The decision taken by the Standing Committee on overall assessment of the work and performance of the petitioner, as demonstrated before us, would not make the termination order punitive from any angle.
The challenge to the termination order of simpliciter discharge of services of the petitioner who was on probation, therefore, is liable to be turned down.
167. Before concluding, we may further delve on one of the most important aspects of the standard of conduct expected of a Judge or a Judicial Officer.
168. The function of the judiciary is distinctively different from any other Organ of the State, in the sense its function is divine. The judiciary is repository of public faith in today's world. It is the trustee of the people and is the last hope of the people, specially common people. After every knock of all the doors fails, people approach the judiciary as a last resort. It is the only temple worshiped by every citizen of this Page 116 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined Nation, regardless of religion, caste, sex, place of birth. Because of the power he wields, a Judge is being judged with more strictness than others. The character of a Judge is being tested by the people. Because of the position that we occupy and the enormous power, we wield, no other authority can impose discipline on us. It is the self-responsibility of a Judge to maintain judicial discipline and integrity, which is a hallmark of judicial discipline. (Reference: Tarak Singh & Anr vs Jyoti Basu & Ors45).
169. The High Court which is the administrative head of the State judiciary has a solemn duty to consider and appreciate the service of a judicial officer before confirming him in service. The District Judiciary is the bedrock of the judicial system as it is positioned at the primary level of entry to the doors of justice. It is the first point of contact for the litigants, who are primarily belonging to the marginalized sections of the society. Looking to the social status of our country, in providing "access to justice," and deliverance of impartial justice, the judicial officers who are entrusted with the task of adjudication must officiate in a manner that is becoming of their position and responsibility towards the society. The upright and honest judicial officers are needed not only to bolster the image of the judiciary in the eyes of the litigants, but also to sustain the quality of integrity, virtue and ethics amongst Judges. The power perception of the judiciary matters just as much as its role in the dispute resolution. It 45 2005 (1) SCC 201 Page 117 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined is, therefore, imperative to maintain high benchmark of quality, honesty, accountability and good conduct for the Judge entering into the District Judiciary.
The standard expected of a Judge is much higher than an ordinary man. The Judge must be a person of impeccable integrity and unimaginable independence. He must be honest to the core with high moral values. Credibility of the judicial system is dependent upon the Judges, who man it. The work and conduct of a judicial officer must be such that when a litigant enters the Court room, he must feel secure that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. For a democracy to thrive and the rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with the standards of equality, honesty, integrity, impartiality and probity. The behaviour of a Judge must be of exacting standards both inside and outside the Court. They must have one standard of rectitude, honesty and integrity. They cannot act even remotely unworthy of the office they occupy. A Judge is judged not only by his quality of judgements, but also by the quality and probity of his character. (Reference: R.C. Chandel vs. High Court of Madhya Pradesh and another 46, Shrirang Yadavrao Waghmare vs. State of Maharashtra 47, and Sadhna Chaudhary vs. The State of Uttar Pradesh48.
46 (2012)8 SCC 58 47 2019(9) SCC 144 48 2020(11) SCC 760 Page 118 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024 NEUTRAL CITATION C/SCA/5295/2022 CAV JUDGMENT DATED: 13/08/2024 undefined
170. In light of the above discussion, the contentions raised by the petitioner to assail the order of termination of her services as a probationer by a simpliciter order of discharge are found to be without any merit and consequently, they are rejected. As a result, the writ petition stands dismissed being devoid of merits. No order as to costs.
(SUNITA AGARWAL, CJ ) (ANIRUDDHA P. MAYEE, J.) SUDHIR Page 119 of 119 Downloaded on : Fri Aug 16 22:42:04 IST 2024