Himachal Pradesh High Court
Sunish Aggarwal vs State Of H.P. & Another on 27 December, 2018
Author: Sandeep Sharma
Bench: Dharam Chand Chaudhary, Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
LPA No.194 of 2016
Judgment Reserved on: 29.11.2018
.
Date of decision: 27.12.2018
Sunish Aggarwal ....Appellant
Versus
State of H.P. & Another ....Respondents
Coram
The Hon'ble Mr.Justice Dharam Chand Chaudhary, Judge.
The Hon'ble Mr.Justice Sandeep Sharma, Judge.
Whether approved for reporting ?1 Yes.
For the Appellant: Mr.Amit Goel, Advocate.
For Respondent No.1: Mr.Vikas Rathore, Additional
Advocate General with Mr.Kunal
Thakur, Deputy Advocate General.
For Respondent No.2: Mr.Dilip Sharma, Senior Advocate
with Ms.Sunita Sharma, Advocate.
Per Sandeep Sharma,J.:
Instant Letters Patent Appeal is directed against the judgment dated 5.10.2016, passed by learned Single Judge of this Court in CWP No.3174 of 2014, titled: Sunish Aggarwal vs. State of H.P. & anr., whereby writ petition having been filed by the petitioner, seeking therein relief that "this writ petition may kindly be allowed throughout with costs and after summoning the records of the case and granting an opportunity of being heard, a writ of certiorari 1 Whether the reporters of Local Papers may be allowed to see the judgement?
::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 2or any other appropriate writ, order or direction may be passed quashing and setting aside the impugned decision of the Hon'ble Administrative Committee of the respondent no.2 .
dated 17th September 2013 (Annexure P-22), impugned order of the Hon'ble Full Court of respondent no.2 dated 18th September 2013 (Annexure P-23), and impugned notification issued by the respondent no.1 dated 19th September 2013 (Annexure P-8), consequently reinstating the petitioner to his original batch of 2009 of the Himachal Judicial Services along with all consequential seniority and benefits including entire salary during his period of discharge," came to be dismissed.
2. For having bird's eye view, necessary facts, which may be relevant for proper adjudication of the case at hand, are that appellant-petitioner (hereinafter referred to as 'the petitioner') was appointed as Civil Judge(Junior Division) on 26.3.2010. He, after having completed his requisite training, came to be posted as Civil Judge(Junior Division)-
cum-Judicial Magistrate Ist Class, Dharamshala, District Kangra from where he was transferred to Anni, District Kullu. On 10.5.2013, while he was traveling with his family and cousins to Jawalamukhi temple in District Kangra, he was stopped by Shri Rajesh Tomar, who was then serving as Civil Judge (Senior Division)-cum-Chief Judicial Magistrate, Kangra. Later on, Shri Rajesh Tomar submitted some ::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 3 complaint to the Registrar General of this Court against indecent behaviour of the petitioner. Record further reveals that above-named Rajesh Tomar, Chief Judicial Magistrate, .
Kangra also lodged an FIR with the Police at Anni regarding threatening calls being received by him over his official telephone. Though initially such action was imputed to the petitioner, however, subsequently it was found that some advocate was making these calls and he was then arrested on 10.7.2013, pursuant to FIR dated 3.7.2013.
3. On the basis of complaint lodged by Shri Rajesh Tomar, a discreet inquiry was ordered against the petitioner by the Registrar(Vigilance) of this Court, who in turn submitted his report dated 26.8.2013. On 16.9.2013, report submitted by Registrar(Vigilance) was placed before learned Administrative Judge, who, after having perused the same, directed that report be placed before Hon'ble the Chief Justice, who in turn ordered that the matter be placed before the Hon'ble Administrative Committee on the same day. On 17.9.2013, the matter came to be placed before Hon'ble Administrative Committee of this Court, wherein a decision was taken to discharge the petitioner from service during his probation period. Aforesaid decision was further ratified by the Hon'ble Full Court on 18.9.2013, which ultimately led to issuance of formal notification by the State ::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 4 Government on 19.9.2013, whereby the petitioner came to be discharged from the service.
4. In the aforesaid background, the petitioner .
approached this Court by way of writ petition averring therein that order of discharge is not simpliciter, but, is punitive and based upon a complaint submitted by Shri Rajesh Tomar and, as such, order of discharge, passed against him without affording him opportunity of being heard, is illegal and violative of provisions of Constitution of India.
5. High Court, while refuting the aforesaid claim put forth by the petitioner, averred in its reply that the petitioner rightly came to be discharged from service during the period of his probation, as he was not found suitable to hold the post of Civil Judge(Junior Division). Respondent-
State also defended its action on the ground that petitioner was ordered to be discharged from service on the basis of recommendations made by the High Court.
6. Learned Single Judge vide impugned judgment dated 5.10.2016 dismissed the petition and held that order of discharge is simpliciter and not punitive in nature and as such no opportunity of being heard was required to be afforded to the petitioner before discharging him from service. Learned Single Judge further held that order is ex facie innocuous and it does not cast any stigma on the ::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 5 petitioner or visit him with penal consequences and it does not attract Article 311 of the Constitution of India.
7. Being aggrieved and dis-satisfied with the .
aforesaid judgment passed by learned Single Judge, petitioner has approached this Court in the instant proceedings, praying therein for his reinstatement after setting aside order of Hon'ble Full Court, notification issued by the Government discharging him from service and impugned judgment dated 5.10.2016 passed by learned Single Judge.
8. Mr.Amit Goel, learned Advocate, who initially argued on behalf of petitioner, almost reiterated the submissions/ arguments, which were made before learned Single Judge at the time of hearing of CWP No.3174/2014.
Learned counsel argued that learned Single Judge dismissed the petition in a very slipshod manner without taking into consideration real controversy. He contended that learned Single Judge failed to lift the veil behind the innocuously worded order of discharge from the proceedings which immediately preceded or which prompted the Hon'ble Administrative Committee to pass the order of discharge. He contended that if totality of circumstances and facts, which lead to discharge of petitioner, are read in conjunction, it cannot be said that order of discharge is simplicitor, but definitely it is punitive in nature, based upon the complaint ::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 6 submitted by Shri Rajesh Tomar, which culminated into discreet inquiry and therefore no order of discharge could have been passed without affording an opportunity of being .
heard to the petitioner. He further contended that the true flavour of the discharge order is to be gathered from material on the basis of which the decision of the Hon'ble Administrative Committee was based upon, which was overlooked by the learned Single Judge of this Court. He contended that decision of Hon'ble Administrative Committee, not to continue the petitioner on probation and to discharge him, appears to be innocuous in language, but, not in substance and the language used in the discharge order by the Hon'ble Administrative Committee or the Hon'ble Full Court may not be conclusive and the Court can peep through the veil in order to ascertain whether under the garb of order of discharge simpliciter the employer had in fact punished the employee by casting remarks on his conduct and behaviour. He further contended that learned Single Judge failed to ascertain the true character of the order and failed to lift veil and to examine the whole record placed by the petitioner, whereby discreet inquiry was got conducted against the petitioner. He contended that had the learned Single Judge bothered/cared to go into the material placed by the petitioner, he would have easily gathered that ::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 7 form of the order is merely a camouflage for an order of dismissal for misconduct.
9. While referring to para-41 of the judgment .
rendered by learned Single Judge, learned counsel made a serious attempt to persuade us to agree with his contention that findings returned by learned Single Judge to the effect that order of discharge is ex facie innocuous and it does not cast any stigma on the petitioner because such findings as per learned counsel are based on non-application of mind.
Learned Single Judge got swayed by the plain words used in the discharge order passed by the Hon'ble Administrative Committee which in turn was ratified by the Hon'ble Full Court on the administrative side.
10. Lastly, learned counsel representing the petitioner referred to remarks given by the learned Administrative Judge on the report submitted by Registrar(Vigilance) to demonstrate that learned Singe Judge completely overlooked the conclusion of guilt arrived at by the learned Administrative Judge qua the misconduct and indecent behaviour and that too behind the back of the petitioner and as such by no stretch of imagination it can be said that order of discharge is simplicitor, rather the same is punitive and based upon complaint submitted by Shri Rajesh Tomar and as such petitioner ought to have been granted ::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 8 opportunity of being heard before passing any order.
Learned counsel placed reliance on the following judgments:-
"1. Shamsher Singh vs. State of Punjab & .
anr., (1974)2 SCC 831 (Constitution Bench);
2. Union of India & ors vs. Mahaveer C.Singhvi, (2010)8 SCC 220;
3. Pradip Kumar vs. Union of India & ors., (2012)13 SCC 182;
4. State Bank of India & ors vs. Palak Modi & anr, (2013)3 SCC 607; and
5. Registrar General, High Court of Gujarat & anr. vs. Jayshree Chaman Lal Buddhbhatti, (2013)16 SCC 59."
11. Mr.Dilip Sharma, learned Senior Counsel, representing the High Court, while refuting aforesaid contention made by Mr.Amit Goel, contended that order of discharge, by no stretch of imagination, can be termed to be punitive rather same is simpliciter. He further contended that discreet inquiry conducted on the petitioner, on the complaint of Shri Rajesh Tomar, could at best be a motive, but definitely not foundation of his discharge. He contended that decision taken by Hon'ble Full Court clearly suggests that the petitioner, who at that relevant time was working as Civil Judge (Junior Division)-cum-JMIC, Anni on probation, was not found suitable to continue in service on probation and was discharged from the service forthwith. Mr.Sharma further contended that though record reveals that complaint ::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 9 was filed by Shri Rajesh Tomar, on the basis of which discreet inquiry was conducted, but definitely conclusion, if any, drawn in that inquiry was not made basis of the .
discharge, rather Hon'ble Administrative Committee in its own wisdom found the petitioner not suitable to continue in service on probation and accordingly he was discharged, which decision of the Hon'ble Administrative Committee was further ratified by the Hon'ble Full Court. Mr.Sharma also placed reliance upon following judgments, which have otherwise been taken note of by the learned Single Judge:-
"1.
The State of Orissa & anr Vs. Ram Narayan Das, AIR 1961 SC 177 (Constitution Bench); 2. Nepal Singh Vs. State of U.P. & ors, (1980)3 SCC 288;
3. Radhey Shyam Gupta Vs. U.P. State Agro Industries Corporation Ltd. & anr., (1999)2 SCC 21;
4. Chandra Prakash Shahi Vs. State of U.P. & Ors, (2000)5 SCC 152;
5. Mathew P.Thomas Vs. Kerala State Civil Supply Corpn. Ltd. & ors. (2003)3 SCC 263;
6. Registrar, High Court of Gujarat and anr.
Vs. C.G. Sharma, (2005)1 SCC 132; and
7. Jai Singh vs. Union of India & Ors, (2006)9 SCC 717."
12. We have heard learned counsel for the parties and gone through the record of the case.
::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 1013. Having heard learned counsel for the parties and perused the material available on record vis-a-vis reasoning assigned by learned Single Judge, we are not persuaded to .
agree with the contention of Shri Amit Goel, learned counsel representing the petitioner, that the findings arrived at by learned Single Judge are based upon incorrect application of law to the facts of the present case, rather this Court has no hesitation to conclude that judgment passed by learned Single Judge is based upon proper appreciation of facts as well as law laid down by the Hon'ble Apex Court and as such we see no reason to interfere with the same. Similarly, we are unable to agree with the contention/submission of learned counsel representing the petitioner that learned Single Judge has dismissed the petition on a slipshod manner, rather careful perusal of impugned judgment passed by learned Single Judge clearly suggests that each and every aspect of the matter has been carefully dealt with by the learned Single Judge. Though in the case at hand record reveals that discreet inquiry came to be instituted against the present petitioner on the basis of complaint filed by Shri Rajesh Tomar, who at that relevant time was working as Chief Judicial Magistrate, Kangra, but we are not convinced and persuaded to agree with the contention raised by learned counsel representing the petitioner that inquiry report submitted, pursuant to aforesaid discreet inquiry, was ::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 11 made basis by the Hon'ble Administrative Committee for discharge of the petitioner, who was definitely on probation at the time of discharge. On the basis of complaint made by .
Shri Rajesh Tomar, Registrar(Vigilance) of this Court conducted discreet inquiry Annexure P-19 (available at page 105 of the writ file), which itself suggests that inquiry was not pursuant to some disciplinary proceedings purposed to be initiated against the petitioner, rather Registrar(Vigilance) (on the basis of complaint made by the complainant Rajesh Tomar), solely with a view to ascertain the correctness and genuineness of the complaint, conducted discreet inquiry.
Though Registrar(Vigilance) in his inquiry concluded that there appears to be no reason for Shri Rajesh Tomar to level false allegations against Shri Suneesh Aggarwal, but, no action, if any, against the petitioner, was ever proposed by Registrar(Vigilance) in that discreet inquiry, which itself suggests that very purpose of inquiry was to ascertain correctness and genuineness of the complaint made by the fellow Judicial Officer. No doubt, such report came to be placed before the learned Administrative Judge, who, while ordering the matter to be placed before Hon'ble the Chief Justice, observed that, "From the perusal of the discreet enquiry report, it cannot be said that the allegations leveled by the complainant against the erring Officer are either false or baseless. In my considered view, the matter should be ::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 12 taken to its logical end and prompt appropriate action be taken in accordance with law". (Annexure P-21 at page 118 of the writ file), but no decision was taken by the Hon'ble .
Administrative Committee, on the basis of aforesaid observation made by the learned Administrative Judge.
14. Subsequently, matter came to be placed before Hon'ble Administrative Committee in its meeting held on 17.9.2013, wherein admittedly matter regarding misconduct and indecent behaviour of Shri Suneesh Aggarwal, JMIC, Anni (petitioner herein) came up for consideration of Hon'ble Administrative Committee as "Item No.3". Simultaneously another "Item No.5" i.e. "Consideration of the matter to consider the continuation, confirmation or suitability of Shri Suneesh Aggarwal, Civil Judge (Junior Division)-cum-JMIC, Anni, (petitioner herein) in service" also came to be placed before the Hon'ble Administrative Committee for consideration.
15. Record reveals that Hon'ble Administrative Committee did not take any decision qua "Item No.3" and simply recorded "Subject to decision taken on item No.5" and qua "Item No.5" Hon'ble Administrative Committee recorded its decision as under:-
"Item No.5 Considered all aspects of the matter. We are of the considered view not to allow Shri Suneesh Aggarwal, Civil Judge ::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 13 (Junior Division)-cum-JMIC, Anni to continue in service on probation. He be discharged from service forthwith."
16. Aforesaid decision of Hon'ble Administrative .
Committee subsequently came up for consideration of the Hon'ble Full Court on 18.9.2003, where decision of the Hon'ble Administrative Committee taken on 17.9.2013, with regard to discharge of Shri Suneesh Aggarwal, Civil Judge(Junior Division)-cum-JMIC, Anni, to not continue him on probation and to discharge him forthwith, came to be ratified. (Annexure P-23 at page 121 of writ file).
17. Having carefully perused the record, excerpts whereof have been reproduced hereinabove, nowhere persuade us to disagree with the findings returned by learned Single Judge that decision taken by Hon'ble Administrative Committee, which in turn was ratified by Hon'ble Full Court, that the decision taken not to continue the petitioner on probation and his consequent discharge is neither stigmatic nor punitive in nature, rather the same is simpliciter discharge. Though this Court is of firm/definite view that discreet inquiry was got conducted to ascertain the correctness and genuineness of the complaint made against the petitioner by fellow Judicial Officer, but, even if, for the sake of argument, it is presumed that some inquiry was conducted, this Court has no hesitation to conclude that same was not a motive much less a foundation for the ::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 14 discharge of the petitioner, who was on probation. In normal routine, complaint filed against him ought to have been placed before the learned Administrative Judge of that .
District by the Registrar concerned. Learned Administrative Judge of the District concerned, having perused the complaint and report of discreet inquiry, ordered the matter to be placed before Hon'ble the Chief Justice so that the matter is taken to its logical end.
18. The fact remains that though the matter with regard to misconduct and indecent behaviour of Suneesh Aggarwal (present petitioner) came up for discussion before Hon'ble Administrative Committee, but Hon'ble Administrative Committee did not take any decision qua the same and simply skipped the same by observing that "Subject to decision taken on Item No.5". Vide "Item No.5"
matter was with regard to consideration of matter with regard to continuation, confirmation or suitability of Shri Suneesh Aggarwal, Civil Judge (Junior Division)-cum-JMIC, Anni, in service on probation. Hon'ble Administrative Committee, after having considered all aspects of the matter, decided not to continue petitioner in service on probation and accordingly, recommended that he be discharged from service forthwith. It is quite apparent from the record that discharge of the petitioner from service was not on the basis of so called inquiry conducted by Registrar(Vigilance) on the ::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 15 basis of report submitted by Shri Rajesh Tomar, rather discharge was based upon over all performance of the petitioner.
.
19. Since learned Single Judge has already dealt with each and every judgments relied upon by learned counsel representing the petitioner before us, we deem it not necessary to deal with the same again. However, crux of all the judgments, as have been referred by the petitioner, is that probationer has no right to continue to hold the post and, therefore, the termination of his service does not operate as forfeiture of any right and is to be distinguished from dismissal, removal or reduction in rank, Hon'ble Apex Court has categorically laid down that it is punishment only when the termination is founded on misconduct, negligence or inefficiency the motive being irrelevant. However, it has been clearly laid down in the aforesaid judgment that services of the petitioner can be terminated when the authority is satisfied regarding his inadequacy for the job or unsuitability for temperamental or other reasons not involving moral turpitude or when his conduct may result in dismissal or removal but without a formal enquiry. In the judgments relied upon by learned counsel representing the petitioner, Hon'ble Apex Court has held that if order of discharge is passed against the probationer at his back on the basis of inquiry conducted into the allegations made ::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 16 against him or her and if same formed foundation of discharge order, same would be bad and liable to be set aside. Where competent authority holds an inquiry or test or .
other evaluation method for judging the suitability of probationer for confirmation and such inquiry or test or other evaluation method forms basis for termination order, even then, action of the competent authority cannot be castigated as punitive. However, if an allegation of misconduct constitutes the foundation of the action taken, the ultimate decision taken by the competent authority can be nullified on the ground of violation of the rules of natural justice.
20. Now, this Court would specifically proceed to deal with arguments advanced by learned counsel representing the petitioner that learned Single Judge failed to lift the veil behind the innocuously worded order of discharge from the proceedings which immediately preceded or which prompted the Hon'ble Administrative Committee to pass the order of discharge.
21. In this regard he specifically referred the judgment rendered by Hon'ble Apex Court in State Bank of India and Ors. vs. Palak Modi & anr., (2013)3 SCC 607, which has otherwise been taken note of by learned Single Judge, wherein the Hon'ble Apex Court has held that though termination order, prima facie, is non stigmatic, Court can ::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 17 lift veil and examine whether in garb of termination simpliciter, employer had in fact punished employee for misconduct. In support of aforesaid contention, learned .
counsel also pressed into service judgment rendered by Hon'ble Apex Court in Shamsher Singh vs. State of Punjab & anr., (1974)2 SCC 831 (already taken note of by learned Single Judge), wherein Hon'ble Apex Court has held that even an innocuously worded order terminating the service may in the facts and circumstances of the case establish that an enquiry into allegations of serious and grave character of misconduct involving stigma has been made in infraction of the provision of Article 311. In such a case the simplicity of the form of the order will not give any sanctity.
22. Learned counsel also made this Court to specifically peruse the judgment rendered by Hon'ble Apex Court in Registrar General, High Court of Gujarat & anr.
vs. Jayshree Chaman Lal Buddhbhatti, (2013)16 SCC 59, which otherwise find mention in judgment rendered by learned Single Judge, to convey that, if it is a case of deciding the suitability of probationer, and for that limited purpose any inquiry is conducted, the same cannot be faulted as such. However, if, during the course of such an inquiry, any allegations are made against the person concerned, which result into a stigma, he ought to be afforded the minimum protection which is contemplated under Article 311(2) of the ::: Downloaded on - 01/01/2019 20:01:40 :::HCHP 18 Constitution of India even though he may be a probationer.
Learned counsel representing the petitioner also laid emphasis on the judgment passed by Hon'ble Apex Court in .
Ratnesh Kumar Choudhary vs. Indira Gandhi Institute of Medical Sciences, Patna, Bihar and Others, (2015) 15 SCC 151.
23. We are not inclined to agree with contention raised by counsel that learned Single Judge did not lift the veil to ascertain the true character of order of discharge by ignoring the background of facts and material placed on record, which found the very basis of discharge of the petitioner, rather careful perusal of record vis-à-vis impugned judgment passed by learned Single Judge embolden us to conclude that findings returned by learned Single Judge are based upon proper appreciation of facts as well as law and as such call for no interference.
24. At the cost of repetition, it may be observed that in the case at hand though discreet inquiry was conducted on the complaint by fellow Judicial Officer against the petitioner, but, definitely that was not made basis to discharge the petitioner from service, rather Hon'ble Administrative Committee, having considered all aspects of the matter, found the petitioner not suitable to continue in service on probation and accordingly recommended him to be ::: Downloaded on - 01/01/2019 20:01:41 :::HCHP 19 discharged and decision of the Hon'ble Administrative Committee was then ratified by the Hon'ble Full Court.
25. Though, we have no doubt in our mind that .
learned Single Judge, while recording impugned judgment, has carefully perused record, but even for the sake of argument, it presumed that he failed to lift the veil behind the innocuously worded order of discharge, as has been argued by learned counsel representing the petitioner, even then there is no force in the arguments of learned counsel for the petitioner because now, while deciding instant appeal, we have carefully examined the record, perusal whereof clearly suggests that discharge of the petitioner is not on the basis of discreet inquiry conducted by Registrar(Vigilance) on the complaint of fellow Judicial officer, rather discharge is on the decision of Hon'ble Administrative Committee, who, after having carefully considered all aspects of the matter, found petitioner not suitable to continue on probation. Mere recommendations of learned Administrative Judge, who had an occasion to peruse the discreet inquiry conducted against the petitioner by Registrar(Vigilance) to place the matter before Hon'ble the Chief Justice with the observation that the matter be taken to its logical end, cannot be a ground for the petitioner to conclude that allegations, contained in the inquiry conducted at his back, were made basis for his ::: Downloaded on - 01/01/2019 20:01:41 :::HCHP 20 discharge, as such, he ought to have been afforded an opportunity of being heard.
26. There cannot be any quarrel with the aforesaid .
exposition of law laid down by Hon'ble Apex Court, but, law, laid down by Hon'ble Apex Court in cases referred hereinabove, is not applicable in the facts and circumstances of the present case.
27. Having perused the matter from all angle, we are unable to agree with learned counsel for the petitioner that misconduct imputed to petitioner in the discreet inquiry conducted by Registrar(Vigilance) of the High Court was made basis to discharge him rather material, as has been discussed hereinabove, clearly reveals that Hon'ble Administrative Committee, after having considered all aspects of the matter, did not find petitioner suitable to continue on probation and accordingly recommended him to be discharged which recommendation of its came to be accepted by the Hon'ble Full Court.
28. Needless to say, during the period of probation employee remains under watch and his service and conduct is under scrutiny. In the case at hand petitioner came to be appointed as a Judicial Officer on 26.3.2010 on temporary basis for a period of two years on probation. The services rendered by Judicial Officer during probation are assessed not solely on the basis of judicial performance, but also on ::: Downloaded on - 01/01/2019 20:01:41 :::HCHP 21 the probity as to how one has conducted himself or herself and as such arguments advanced by learned counsel representing the petitioner that during period of probation .
petitioner had cleared all departmental examination successfully in Higher Standard cannot be a ground to conclude that he was suitable for the post in question rather overall work and conduct of officer during probation is taken into consideration by the authority at the time of regularizing the services of the person, who was on probation. In the case at hand, record clearly reveals that Hon'ble Administrative Committee, while recommending discharge of the petitioner, took into consideration overall record of the petitioner. Mere recording of factum with regard to unsatisfactory service and even mentioning the same in the order would not amount to casting any aspersion on the petitioner nor it could be said that stating in the order that his service is unsatisfactory amounts to a stigmatic order.
29. Reliance is placed upon the judgment of Hon'ble Apex Court in Rajesh Kohli vs. High Court of Jammu and Kashmir and Another, (2010)12 SCC 783, wherein the Hon'ble Apex Court has held as under:-
"17. This Court in Satya Narayan Athya v. High Court of M.P., (1996) 1 SCC 560 case held at paras 3 & 5 that : (SCC pp.561-62) "3. ......................A reading thereof would clearly indicate that every candidate appointed to the cadre shall undergo training initially for a period of six months before he is ::: Downloaded on - 01/01/2019 20:01:41 :::HCHP 22 appointed on probation for a period of two years. On his completion of two years of probation, it may be open to the High Court either to confirm or extend the probation. At the end of the probation period, if he is not confirmed on being found unfit, it may be extended for a further period not exceeding two years. It is seen that though there is .
no order of extension, it must be deemed that he was continued on probation for an extended period of two years. On completion of two years, he must not be deemed to be confirmed automatically. There is no order of confirmation. Until the order is passed, he must be deemed to continue on probation.
5. Under these circumstances, the High Court was justified in discharging the petitioner from service during the period of his probation. It is not necessary that there should be a charge and an enquiry on his conduct since the petitioner is only on probation and during the period of probation, it would be open to the High Court to consider whether he is suitable for confirmation or should be discharged from service."
(emphasis supplied)
18. During the period of probation an employee remains under watch and his service and his conduct is under scrutiny. Around the time of completion of the probationary period, an assessment is made of his work and conduct during the period of probation and on such assessment a decision is taken as to whether or not his service is satisfactory and also whether or not on the basis of his service and track record his service should be confirmed or extended for further scrutiny of his service if such extension is permissible or whether his service should be dispensed with and terminated. The services rendered by a judicial officer during probation are assessed not solely on the basis of judicial performance, but also on the probity as to how one has conducted himself.
19. The aforesaid resolution taken by the full court on its administrative side clearly indicates that the matter regarding his confirmation or otherwise or extension of his probation period for another one year was considered by the full court but since his service was not found to be satisfactory on consideration of the records, therefore, the full court decided not to confirm him in service and to dispense with his service and accordingly recommended for dispensation of his service. On the basis of the aforesaid recommendation of the High Court, an order was passed by the Government of Jammu & Kashmir dispensing with the service of the petitioner.
20. These facts clearly prove and establish that the order of termination of service of the petitioner was not issued by the Jammu & Kashmir High Court but it only recommended his termination as his service ::: Downloaded on - 01/01/2019 20:01:41 :::HCHP 23 was not found to be satisfactory. The aforesaid recommendation was accepted by the Government which finally ordered the termination of his service. The aforesaid order was an order of the competent authority and issued by the Government of Jammu .
& Kashmir. Since the said order was issued by the competent authority, it was a valid order and should be treated as such, although it was specifically not issued in the name of the Governor.
21. In the present case, two orders are challenged, one, which was the order of the High Court based on the basis of the resolution of the full court and the other one issued by the Government of Jammu & Kashmir on the ground that they were stigmatic orders.
22. In our considered opinion, none of the aforesaid two orders could be said to be a stigmatic order as no stigma is attached. Of course, aforesaid letters were issued in view of the resolution of the full court meeting where the full court of the High Court held that the service of the petitioner is unsatisfactory. Whether or not the probation period could be or should be extended or his service should be confirmed is required to be considered by the full court of the High Court and while doing so necessarily the service records of the petitioner are required to be considered and if from the service records it is disclosed that the service of the petitioner is not satisfactory it is open for the respondents to record such satisfaction regarding his unsatisfactory service and even mentioning the same in the order would not amount to casting any aspersion on the petitioner nor it could be said that stating in the order that his service is unsatisfactory amounts to a stigmatic order.
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, (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 question of having to comply with the principles of natural justice does not arise.
24. In Verma case this court had the occasion to determine as to whether the impugned order therein was a letter of termination of services simpliciter or stigmatic termination. After considering various earlier decisions of this Court in para 21 of the ::: Downloaded on - 01/01/2019 20:01:41 :::HCHP 24 aforesaid decision it was stated by this Court thus:
(SCC p. 528) "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 anyone of the three factors is missing, the termination has been upheld."
In para 29 of the judgment, it further held thus: (SCC, pp.529-30) "29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a 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 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. The decisions cited by the parties and noted by us earlier, also do not hold so. 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."
(emphasis supplied)
25. In Krishnadevaraya Education Trust v. L.A. Balakrishna, (2001) 9 SCC 319, the services of respondent-Assistant Professor were terminated on the ground that his on the job proficiency was not upto the mark. This Court held that merely a mention in the order by the employer that the services of the employee are not found to be satisfactory would not tantamount to the order being a stigmatic one. This Court held in paras 5 & 6 thus: (SCC pp.320-21) "5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated ::: Downloaded on - 01/01/2019 20:01:41 :::HCHP 25 because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated."
.
6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services."
(emphasis supplied)
26. In Chaitanya Prakash v. H. Omkarappa, (2010) 2 SCC 623, 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 company terminated him. Court after referring to a series of cases held that the impugned order of termination of respondent is not stigmatic.
27. In State of Punjab v. Bhagwan Singh, (2002) 9 SCC 636 this Court at paras 4 & 5 held as follows: (SCC p.637) "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 was "not satisfactory". Even that does not amount to any stigma."
28. In the present case, the order of termination is a fall out of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. Such satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of the aforesaid resolution, the matter was referred to the State Government for issuing necessary orders."
::: Downloaded on - 01/01/2019 20:01:41 :::HCHP 2630. In Rajesh Kumar Srivastava vs. State of Jharkhand and Others, (2011)4 SCC 447, the Hon'ble Apex Court has held:-
.
"9. The records placed before us disclose that at the time when the impugned order was passed, the appellant was working as a Probationer Munsif. A person is placed on probation so as to enable the employer to adjudge his suitability for continuation in the service and also for confirmation in service. There are various criteria for adjudging suitability of a person to hold the post on permanent basis and by way of confirmation. At that stage and during the period of probation the action and activities of the appellant are generally under scrutiny and on the basis of his overall performance a decision is generally taken as to whether his services should be continued and that he should be confirmed, or he should be released from service. In the present case, in the course of adjudging such suitability it was found by the respondents that the performance of the appellant was not satisfactory and therefore he was not suitable for the job.
10. The aforesaid decision to release him from service was taken by the respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard neither any notice is required to be given to the appellant nor he is required to be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the appellant, but was a case of simple discharge from service. It is, therefore, only a termination simpliciter and not removal from service on the grounds of indiscipline or misconduct. While adjudging his performance, conduct and overall suitability, his performance record as also the report from the higher authorities were called for and they were looked into before any decision was taken as to whether the officer concerned should be continued in service or not.
11. In a recent decision of this Court in Rajesh Kohli vs. High Court of J & K & Anr., (2010) 12 SCC 783, almost a similar issue cropped up for consideration, in which this Court has held that the High Court has a solemn duty to consider and appreciate the service of a judicial officer before confirming him in service and for this not only judicial performance but also probity as to how one has conducted himself is relevant and important. It was also held in the same decision that upright and honest judicial officers are needed in the district judiciary, which is the bedrock of our judicial system.::: Downloaded on - 01/01/2019 20:01:41 :::HCHP 27
12. The order of termination passed in the present case is a fall out of his unsatisfactory service adjudged on the basis of his overall performance and the manner in which he conducted himself. Such decision cannot be said to be stigmatic or punitive.
.
This is a case of termination of service simpliciter and not a case of stigmatic termination and therefore there is no infirmity in the impugned judgment and order passed by the High Court."
31. After having carefully examined each and every aspect of the matter, we are of the view that order of discharge is simpliciter and not punitive in nature and, as such, learned Single Judge rightly arrived at a conclusion that no opportunity of being heard was required to be afforded to the petitioner before discharging him from service and order of discharge being ex facie innocuous does not cast any stigma on the petitioner or visit him with penal consequences and it does not attract Article 311 of the Constitution of India
32. Consequently, in view of detailed discussion made hereinabove, we see no reason to interfere in the well reasoned judgment rendered by the learned Single Judge, as such, the same is upheld. This appeal fails and is dismissed, accordingly.
33. All interim orders are vacated and all the pending miscellaneous applications are disposed of.
(Dharam Chand Chaudhary)
Judge
December 27, 2018 (Sandeep Sharma)
(aks) Judge
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