Himachal Pradesh High Court
Sunish Aggarwal vs State Of Hp & Anr on 5 October, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No.3174 of 2014
.
Reserved on: 14.9.2016
Decided on: 5.10.2016.
Sunish Aggarwal ...Petitioner
Versus
State of HP & anr ...Respondents
of
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
rt
Whether approved for reporting?1Yes
For the Petitioner: Mr.Ramakant Sharma, Senior
Advocate with Ms. Devyani Sharma,
Advocate.
For the Respondents: Mr.J.S. Guleria, Assistant Advocate
General for respondent No.1
Mr. Dilip Sharma, Senior Advocate
with Ms. Sunita Sharma, Advocate for
respondent No.2.
Tarlok Singh Chauhan, J.
This writ petition takes exception to the decision dated 17.9.2013 taken by the Administrative Committee of three Hon'ble Judges, whereby the petitioner during his probation period was ordered to be discharged from service. It further takes exception to the order dated 18.9.2013 of the Hon'ble Full Court, whereby decision of the Administrative Committee dated 17.9.2013 was ratified and lastly it takes exception to the notification issued by the State government on 19.9.2013, whereby the petitioner was ordered to be discharged from the service.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 22. The petitioner after undergoing a selection process came to be appointed as a Civil Judge (Junior Division) and joined .
as such on 26.3.2010 at H.P. Judicial Academy, Boileauganj, Shimla. After completion of the requisite training, he was posted as Civil Judge (Junior Division)-cum-Judicial Magistrate, 1st Class, Dharamshala, District Kangra and thereafter transferred to Anni, of District Kullu, where he joined on 3.12.2012.
3. It is the case of the petitioner that on 10.5.2013, while rt he was travelling with his family and cousins to Jawalamukhi temple in District Kangra, he was stopped by Sh.Rajesh Tomar, who was then serving as Civil Judge (Senior Division)-cum-Chief Judicial Magistrate, Kangra and later on submitted some complaint against the petitioner alleging therein certain misconduct and indecent misbehaviour on the part of petitioner. This information was gathered by the petitioner under the Right to Information Act.
4. In addition to that, said Sh. Rajesh Tomar had also lodged an FIR with the police at Anni regarding threatening calls being received by him over his official telephone. Such action was though imputed to the petitioner, however, later on these calls were traced and it was found that one Kapil Mohan Sood, Advocate, had been making these calls and he was even arrested on 10.7.2013 pursuant to FIR dated 3.7.2013.
5. It is the further case of the petitioner that on the complaint submitted by Sh. Rajesh Tomar, a discreet inquiry was ordered to be conducted by the Registrar (Vigilance) of this court, ::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 3 who submitted his report dated 26.8.2013 on 16.9.2013. The aforesaid report was placed before the Hon'ble Administrative .
Judge, who directed the report to be placed before Hon'ble the Chief Justice, who in turn directed the matter to be placed before the Administrative Committee the same day. Consequently, the matter was placed before the Administrative Committee of three of Hon'ble Judges on 17.9.2013, wherein a decision was taken to discharge the petitioner from service during his probation period.
rt The decision was ratified by the Hon'ble Full Court on 18.9.2013 and same led to a formal notification by the State government on 19.9.2013, whereby he was discharged from service.
6. The grievance of the petitioner is that the order of discharge is not simpliciter, but is punitive and based upon the complaint submitted by Sh.Rajesh Tomar, which culminated into a discreet inquiry and, therefore, without affording an opportunity of being heard as also defend himself, the order of discharge is illegal and violative of the provisions of the Constitution of India.
7. Respondent State has filed its reply wherein it is averred that the notification dated 19.9.2013 (Annexure P-8),whereby petitioner was ordered to be discharged from service, was issued by the replying respondent on the basis of the recommendations made by the High Court and save and except issuing this order, it had no role in the instant case.
8. The High Court in its reply has contested the petition by claiming therein that the petitioner was rightly discharged from ::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 4 service during the period of his probation as he was not found suitable to hold the post of Civil Judge (Junior Division).
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9. The petitioner in rejoinder has reiterated that his discharge from service cannot be termed to be a discharge simpliciter and being punitive, deserves to be set aside.
of I have heard the learned counsel for the parties and have gone through the records of the case.
10. rt Learned counsel for the petitioner would vehemently argue that the order of discharge is punitive and contrary to the principles of natural justice and in support of such contention has placed heavy reliance upon the following judgments; Samsher Singh Vs. State of Punjab & anr, (1974) 2 SCC 831(Constitution Bench); Union of India & ors Vs. Mahaveer C.Singhvi, (2010) 8 SCC 220; Pradip Kumar Vs. Union of India & ors (2012) 13 SCC 182; State Bank of India & ors Vs. Palak Modi & anr (2013) 3 SCC 607 and Registrar General, High Court of Gujarat & anr Vs. Jayshree Chaman Lal Buddhbhatti (2013) 16 SCC 59.
11. On the other hand, learned Senior counsel, appearing on behalf of High Court has stated that a discreet inquiry conducted on the petitioner on the complaint of Sh.Rajesh Tomar could, at best, be a motive, but definitely not foundation of his discharge and in support of his contention, has relied upon the following judgments of the Hon'ble Supreme Court; The State of Orissa & anr Vs.Ram Narayan Das AIR 1961 SC 177 ::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 5 (Constitution Bench); Nepal Singh Vs. State of U.P.& ors (1980) 3 SCC 288; Radhey Shyam Gupa Vs U.P.State Agro Industries .
Corporation Ltd & anr (1999) 2 SCC 21; Chandra Prakash Shahi Vs. State of U.P. & ors (2000) 5 SCC 152; Mathew P. Thomas Vs. Kerala State Civil Supply Corpn Ltd & ors (2003) 3 SCC 263;
Registrar, High Court of Gujarat & anr Vs. C.G. Sharma (2005) 1 of SCC 132 and Jai Singh Vs. Union of India & ors (2006) 9 SCC
717. rt
12. Now, I will proceed to discuss one by one the judgments relied upon by the petitioner.
13. In Samsher Singh Vs. State of Punjab & anr, (1974) 2 SCC 831, a Constitution Bench of the Hon'ble Supreme Court held that a 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. It is punishment only when the termination is founded on misconduct, negligence or inefficiency the motive being irrelevant. It was further held 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. The fact of holding an inquiry is not always conclusive. What is decisive is whether the order is really by way of ::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 6 punishment. The substance of the order and not the form would be decisive.
.
14. In Union of India & ors Vs. Mahaveer C.Singhvi, (2010) 8 SCC 220; Hon'ble three Judges Bench of the Hon'ble Supreme Court has held that if finding against the probationer is arrived at his back on the basis of inquiry conducted into the of allegations made against him/her and if same formed foundation of discharge order, same would be bad and liable to be set aside.
rt While, on the other hand, if no inquiry is held or contemplated and allegations were merely a motive for passing order of discharge without giving him a hearing, same would be valid. This position was reiterated in another Hon'ble three Judges Bench decision in Pradip Kumar Vs. Union of India & ors (2012) 13 SCC 182.
15. In State Bank of India & ors Vs. Palak Modi & anr (2013) 3 SCC 607, it was reiterated that the probationer has no right to hold post and his services can be terminated at any time on the grounds of unsuitability. It was further held that 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. Moreover, ::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 7 in such cases, though termination order, prima facie, is non stigmatic, court can lift veil and examine whether in garb of .
termination simpliciter, employer had in fact punished employee for misconduct.
16. In Registrar General, High Court of Gujarat & anr Vs. Jayshree Chaman Lal Buddhbhatti (2013) 16 SCC 59, the of Hon'ble Supreme Court was dealing with the case where services of a probationer Civil Judge had been terminated on the ground of rt unsuitability for the post. This order was actually based on prior discreet inquiry and later a preliminary inquiry was also conducted into the adverse allegations against the Civil Judge without affording her an opportunity of hearing. It was held that although the inquiry was justified for the purpose of ascertaining suitability for the post, but the termination was not a termination simpliciter. It was held as under:
"20. The question, therefore, comes for consideration, as stated earlier, as to whether this is a case of termination simpliciter of the services of a probationer on account of her unsuitability for the post that she was holding, or whether it is a termination of her services after holding an inquiry behind her back, and without giving her an opportunity to defend.
31. Having gone through the salient judgments on the issue in hand, one thing which emerges very clearly is that, if it is a case of deciding the suitability of a probationer, and for that limited purpose any inquiry is conducted, the same cannot be faulted as such. However, if during the course of such an inquiry any allegations are made against the person concerned, which result into a stigma, he ought to be afforded the minimum protection which is contemplated under Article ::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 8 311 (2) of the Constitution of India even though he may be a probationer. The protection is very limited viz. to inform the person concerned about the charges against him, and to give .
him a reasonable opportunity of being heard."
17. Now coming to the judgments relied upon by the respondents, it would be noticed that in The State of Orissa & anr of Vs.Ram Narayan Das AIR 1961 SC 177, a Constitution Bench of the Hon'ble Supreme Court held that in case an inquiry is conducted rt against a probationer to ascertain his fitness for confirmation, then the discharge on such inquiry does not amount to punishment. It was held that the probationer can always be discharged in any manner provided under the rules and mere termination of employment does not carry with it 'any evil consequences, such as forfeiture of pay or allowances, loss of seniority, stoppage or postponement of future changes of promotion etc. 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 inquiry to ascertain whether he was fit to be confirmed, is not of that nature and to such a case, Article 311 (2) of the Constitution of India does not apply.
18. In Nepal Singh Vs. State of U.P.& ors (1980) 3 SCC 288, the Hon'ble Supreme Court held that an order terminating the services of a temporary government servant and ex facie innocuous in that it does not cast any stigma on the government ::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 9 servant or visits him with penal consequences, must be regarded as effecting a termination simpliciter, which will not attract Article 311. It .
was further held that an order is not punitive if the material against the government servant on which the superior authority has acted constitutes the motive and not the foundation of the order. The function of the court is to discover the nature of the order by of attempting to ascertain what was the motivating consideration in the mind of the authority which prompted the order. The intent behind rt the order can be discovered and proved, like any other fact, from the evidence on the record. In each case, it is necessary to examine the entire range of facts carefully and consider whether in the light of those facts the superior authority intended to punish the government servant or, having regard to his character, conduct and suitability in relation to the post held by him, it was intended simply to terminate his services. The circumstance that disciplinary proceeding had been instituted against him earlier does not in itself lead to the inference that the impugned order was by way of punishment.
19. The law on the subject has been lucidly explained with impeccable erudition by the Hon'ble Supreme In Radhey Shyam Gupa Vs U.P.State Agro Industries Corporation Ltd & anr (1999) 2 SCC 21 wherein it was held as under:
"33. It will be noticed from the above decisions that the termination of the services of a temporary servant or one on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive inasmuch as the above ::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 10 facts are merely the motive and not the foundation. The reason why they are the motive is that the assessment is not done with the object of finding out any misconduct on the part of the Officer, as .
stated by Shah, J. (as he then was) in Ram Narayan Das's case. It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary inquiry is held because the purpose of a preliminary inquiry is to find out if there is prima facie evidence or material to initiate a regular departmental inquiry. It has been so decided in of Champaklal's case. The purpose of the preliminary inquiry is not to find out misconduct on the part of the Officer and if a termination follows without giving an opportunity, it will not be bad. Even in a case where a regular departmental inquiry is started, a charge rt memo issued, reply obtained, and an enquiry Officer is appointed - if at that point of time, the inquiry is dropped and a simple notice of termination is passed, thee same will not be punitive because the enquiry Officer has not recorded evidence nor given any findings on the charges. That is what is held in Sukh Raj Bahadur's case and in Benjamin's case. In the latter case, the departmental inquiry was stopped because the employer was not sure of establishing the quilt of the employee. In all these cases the allegations against the employee merely raised a cloud on his conduct and as pointed by Krishna Iyer, J. in Gujrat Steel Tubes case, the employer was entitled to say that he would not continue an employee against whom allegations were made the truth of which the employer was not interested to ascertain. In fact, the employer, by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules was conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order was passed. The above are all examples where the allegations whose truth has not been found, and were merely the motive.
34. But in cases where the termination is preceded by an inquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the Officer and where on the basis of such a report, the termination order is issued, such an order will be violative of principles of natural justice inasmuch as the purpose of the inquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental inquiry. In such cases, ::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 11 the termination is to be treated as based or founded upon misconduct and will be punitive. These are obviously not cases where the employer feels that there is a mere cloud against the .
employees conduct but are cases where the employer has virtually accepted the definitive and clear findings of the Inquiry Officer, which are all arrived at behind the back of the employee - even though such acceptance of findings is not recorded in the order of termination. That is why the misconduct is the foundation and not merely the motive, in such cases."
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20. In Mathew P. Thomas Vs. Kerala State Civil rt Supply Corpn Ltd & ors (2003) 3 SCC 263, Hon'ble Supreme Court was dealing with the case of a probationer against whom allegations of repeated dereliction of duty tantamounting to unsatisfactory performance and against whom show cause notice containing serious allegations of misconduct had been levelled, but the ultimate order of termination that was passed only recorded unsatisfactory performance and it was held that the order was not punitive but was simpliciter .
21. In Registrar, High Court of Gujarat & anr Vs. C.G. Sharma (2005) 1 SCC 132, services of a probationer Civil Judge had been terminated by the High Court on being satisfied about his working of being unsatisfactory on evaluation of overall performance considering the confidential reports, complaints questioning his integrity, vigilance report etc and it was held that no opportunity of hearing needs to be given in such matters as it is purely a matter of subjective satisfaction. It shall be apt to reproduce the following observations:
::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 12"43. But the facts and circumstances in the case on hand is entirely different and the administrative side of the High Court and the Full court were right in taking the decision to terminate .
the services of the respondent, rightly so, on the basis of the records placed before them. We are also satisfied, after perusing the Confidential Reports and other relevant Vigilance files etc. that the respondent is not entitled to continue as a Judicial officer. The order of termination is termination simplicitor and not punitive in nature and, therefore, no of opportunity needs to be given to the respondent herein. Since the overall performance of the respondent was found to be unsatisfactory by the High Court during the period of rt probation, it was decided by the High Court that the services of the respondent during the period of probation of the respondent be terminated because of his unsuitability for the post. In this view of the matter, order of termination simplicitor cannot be said to be violative of Arts. 14, 16 and 311 of the Constitution of India. The law on the point is crystalised that the probationer remains probationer unless he has been confirmed on the basis of the work evaluation. Under the relevant Rules under which the respondent was appointed as a Civil Judge, there is no provision for automatic or deemed confirmation and/or deemed appointment on regular establishment or post, and in that view of the matter, the contentions of the respondent that the respondent's services were deemed to have been continued on the expiry of the probation period, are misconceived.
"47.In our opinion, what is to be considered in such matters is the examination of overall entries of the officer concerned and not the entry here and there. It may well be in some cases that in spite of satisfactory performance still the authority may desire to not to extend the Probation of an employee in public interest, as in the opinion of the said authority, the post has to be manned by more efficient and dynamic person. There is no denying of the fact that in all organizations there is great deal of dead-wood and, more so in Government and Judicial departments, which has to be replaced in public interest.::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 13
Therefore, as pointed out by many Courts in India and of this Court it is purely a matter of subjective satisfaction of the High Court. In such case, the record so considered would naturally .
include the entries in the Confidential Reports/Character Rolls/Vigilance Reports, both favourable and adverse. There cannot be any justification for interference by this Court in such cases."
22. Similar reiteration of law with regard to the of termination order being punitive or simpliciter has been reiterated in Jai Singh Vs. Union of India & ors (2006) 9 SCC 717.
rt
23. It would be evidently clear from the judgments relied upon by either of the sides that the Hon'ble Supreme Court has clearly laid down two lines of authority. In certain cases of temporary service and probationers, it has taken a view that if an ex parte inquiry or a report is the motive for the termination order, then the termination is not to be called punitive, merely because principles of natural justice have not been followed.
24. Whereas in other line of decision, Hon'ble Supreme Court has clearly ruled that if the facts revealed in the inquiry are not the motive but the foundation for the termination of the services of the temporary servant or probationer, it would be punitive and the principles of natural justice are bound to be followed and failure to do so, would make the order legally unsound.
25. It can be taken to be settled that the transitory character of probationer appointment carries with it by necessary implication the consequences that it is terminable at any time. It has, therefore, been consistently held that a probationer whose ::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 14 services have been terminated for unsuitability of the job, cannot complain about such termination as the same is simpliciter .
termination.
26. Adverting to the facts, it would be noticed that as regards as the complaint filed by Sh. Rajesh Tomar, whereby certain allegations had been levelled against the petitioner, a of discreet inquiry into the complaint was conducted by the Registrar (Vigilance) of this court and such inquiry was then placed before the rt Hon'ble Administrative Judge, who on 16.9.2013 observed as under:
"From the perusal of the discreet inquiry report, it cannot be said that the allegations levelled by the complainant against the erring officer are either false or baseless. In my considered view, the matter should be taken to its logical end and prompt appropriate action be taken in accordance with law.
As such, the matter be placed before Hon'ble the Chief Justice for further necessary action."
27. When the matter was placed before Hon'ble the Chief Justice on 17.9.2013, Hon'ble the Chief Justice directed the matter to be placed before the Administrative Committee on 17.9.2013 itself and the relevant agenda items and decision thereupon reads as under:
Item No.3 Consideration of the matter regarding misconduct and indecent behaviour of Sh. Sunish Aggarwal, Civil Judge (Junior Division)-cum-Judicial Magistrate 1st Class, Anni.::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 15
Subject to decision taken on item No.5.
Item No.5.
.
Consideration of the matter to consider the continuation, confirmation or suitability of Shri Suneesh Aggarwal, Civil Judge (Junior Division)-cum JMIC, Anni, in service.
Considered as aspects of the matter. We are of the considered view not to allow Shri Suneesh Aggarwal, of Civil Judge (Junior Division)-cum JMIC, Anni to continue in service on probation. He be discharged from service forthwith.
28. rt The decision of the Hon'ble Administrative Committee in turn was placed before the Hon'ble Full Court meeting held on 18.9.2013 and the agenda item pertaining to the petitioner and decision thereupon reads as under:
" Item No.3.
Consideration of the decision of Hon'ble Administrative Committee for ratification.
The decision of the Hon'ble Administrative Committee taken on 17.9.2013 in respect of Shri Suneesh Aggarwal, Civil Judge (Junior Division)-cum JMIC, Anni to not continue him on probation and to be discharged forthwith ratified."
29. As regards, the order passed by the State Government on 19.9.2013 (Annexure P-8), the same reads thus:
"Government of Himachal Pradesh H.P. Secretariat, Home Department No.Hom B(B)14-1/2013-43 Dated, Shimla-2, 19/09/2013.
NOTIFICATION Whereas the matter of Shri Suneesh Aggarwal, presently working as Civil Judge (Junior Division)-cum-JMIC, Anni, District Kullu, H.P. for his continuation confirmation or suitability in service was considered and after considering all aspects of the matter, the Hon'ble ::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 16 High Court of Himachal Pradesh has decided and recommended not to allow him to continue in service on probation and to discharge him from service forthwith.
.
Therefore, the Governor, Himachal Pradesh, on the recommendation of the Hon'ble High Court of Himachal Pradesh, is pleased to discharge Shri Suneesh Aggarwal, presently working as Civil Judge (Junior Division)-cum-JMIC, Anni, District Kullu, H.P. from service, with immediate effect.
By Order of Sudripta Roy Chief Secretary,(Home) to the Government of Himachal Pradesh rt No.Home B(B)14-1/2013 Dated, Shimla-2, 19/09/2013. Copy forwarded for information and necessary action to:-
1. The Secretary to the Her Excellency the Governor of H.P.,Shimla-2.
2. The Registrar General, Himachal Pradesh High Court, Shimla-1 with reference to his letter No. HHC/GAZ/14-314/2010-66 dated 17th September, 2013.
3. The above named Judicial Officer.
4. The Controller, Printing and Stationery,H.P., Shimla-5 for publication in Government Gazette.
5. Guard file.
(D.K.Manta) Deputy Secretary(Home) to the Government of Himachal Pradesh, Tel.(Off) 01772628503."
30. It would be noticed that in the meeting of the Administrative Committee held on 17.9.2013, the issue relating to petitioner appeared at item No.3 and item No.5 respectively. As regards item No.3, the same was with regard to misconduct and indecent behaviour of the petitioner, whereas item No.5 only pertained to consideration regarding the continuation, confirmation or suitability of the petitioner.
::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 1731. At this stage, learned Senior Counsel for the petitioner would vehemently argue that the decision taken by the .
Hon'ble Full Court, has in fact been taken on item No. 3 and not on item No.5. Therefore, it was the alleged misconduct and mis-
behaviour which weighed with the Hon'ble Full Court while ratifying the decision of the Administrative Committee and thus the order so of passed by the Hon'ble Full Court cannot be termed to be a mere simpliciter, rather the same is punitive. To say the least, this rt contention of the petitioner is fallacious and palpably erroneous as would be clear from the relevant agenda extracted above and mere assigning of the same number i.e. item No.3 to both the agendas is purely co-incidental.
32. It is clear from the decision taken by the Administrative Committee, which in turn has been ratified by the Hon'ble Full Bench that the decision taken not to continue the petitioner on probation and his consequent discharge is neither stigmatic nor punitive in nature, but is rather simpliciter. Even if some inquiry was conducted, the same was not a motive much less a foundation for the discharge of the petitioner during the period of his service on probation.
33. As observed earlier, it is not in dispute that it was pursuant to the aforesaid decision of the Hon'ble Full Court that a notification dated 19.9.2013 (Annexure P-8) was issued by the government whereby petitioner was ordered to be discharged from service.
::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 1834. In the given circumstances, the further question that falls for consideration is the scope of judicial review in matters .
which have been approved by the Hon'ble Full Court.
35. It cannot be disputed that the Full Court acts on the collective wisdom of all Judges and, therefore, the exercise of undertaken by the Full Court is not ordinarily amenable to judicial review except under extra ordinary circumstances.
36. rt Here, it would be equally relevant to refer to the following observations of the Hon'ble Supreme Court in Syed T.A. Naqshbandi & ors Vs. State of Jammu & Kashmir & ors (2003) 9 SCC 592, wherein it was inter alia held thus:
"10. ....Neither the High Court nor this Court, in exercise of its powers of judicial review, could or would at any rate substitute themselves in the place of the Committee/Full Court of the High Court concerned, to make an independent reassessment of the same, as if sitting on an appeal. On a careful consideration of the entire materials brought to our notice by learned counsel on either side, we are satisfied that the evaluation made by the Committee/Full Court forming their unanimous opinions is neither so arbitrary or capricious nor can be said to be so irrational as to shock the conscience of the Court to warrant or justify any interference. In cases of such assessment, evaluation and formulation of opinions a vast range of multiple factors play a vital and important role and no one factor should be allowed to be overblown out of proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. Viewed thus, and considered in the background of the factual details and materials on record, there is absolutely no need or justification for this Court to interfere in the matter, with the impugned proceedings."
::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 1937. In this context, it shall be apt to re-produce the following observations of the Hon'ble Supreme Court in Rajendra .
Singh Verma Vs. Lieutenant Governor (NCT of Delhi) and others (2011) 10 SCC 1.
"218. On a careful consideration of the entire material, it must be held that the evaluation made by the Committee/Full Court, of forming their unanimous opinion, is neither so arbitrary nor capricious nor can be said to be so irrational, so as to shock the conscience of this Court to warrant or justify any interference. In rt cases of such assessment, evaluation and formulation of opinions, a vast range of multiple factors play a vital and important role and no one factor should be allowed to be blown out of proportion either to decry or deify an issue to be resolved or claims sought to be considered or asserted. In the very nature of things it would be difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary case when the Court is convinced that some monstrous thing which ought not to have taken place has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court.
219. Viewed thus, and considered in the background of the factual details and materials on record, there is absolutely no need or justification for this Court to interfere with the impugned proceedings. Therefore, the three appeals fail and are dismissed. Having regard to the facts of the case, there shall be no order as to costs."
38. In Registrar General, Patna High Court Vs. Pandey Gajendra Prasad and others, AIR 2012 SC 2319, the Hon'ble Supreme Court after reviewing the entire case law reiterated the principles laid down from time to time with regard to the scope of ::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 20 judicial review in such like cases and held that when the report of the Administrative Committee was put up before the Full Court .
which takes a conscious decision to award the punishment/dismissal from service, then it would be very difficult rather almost impossible to subject such an exercise to judicial review except in extra ordinary cases.
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39. Yet again in recent decision in High Court of rt Judicature of Patna, through Registrar General Vs. Shyam Deo Singh & ors (2014) 4 SCC 773, after referring to the earlier decision in Syed T.A. Naqshbandi Vs. State of Jammu & Kashmir, (2003) 9 SCC 592, the limited judicial review that is permissible was reiterated by the Hon'ble Supreme Court in para 8 of the judgment, which reads thus:-
"8.The importance of the issue can hardly be gainsaid. The evaluation of the service record of a judicial officer for the purpose of formation of an opinion as to his/her potential for continued useful service is required to be made by the High Court which obviously means the Full Court on the administrative side. In all High Courts such evaluation, in the first instance, is made by a committee of senior Judges. The decision of the Committee is placed before the Full Court to decide whether the recommendation of the Committee should be accepted or not. The ultimate decision is always preceded by an elaborate consideration of the matter by Hon'ble Judges of the High Court who are familiar with the qualities and attributes of the judicial officer under consideration. This is also what had happened in the present case. The very process by which the decision is eventually arrived at, in our view, should permit a limited judicial review and it is only in a rare case where the decision taken is unsupported by any material or the same ::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 21 reflects a conclusion which, on the face of it, cannot be sustained that judicial review would be permissible."
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40. What, therefore, emerges from the aforesaid exposition of law is that where the Full Court of the High Court recommends any particular action on the administrative side, the High Court on the judicial side has to exercise great caution and of circumspection in setting aside that order because it is a complement of all the High Court Judges, who act on their rt collective wisdom. In the very nature of things it would be difficult, nearing almost an impossibility to subject such exercise undertaken by the Full Court, to judicial review except in an extraordinary case when the Court is convinced that some monstrous thing which ought not to have taken place has really happened and not merely because there could be another possible view or someone has some grievance about the exercise undertaken by the Committee/Full Court.
41. In view of the aforesaid detailed discussion I am of the firm opinion that the order of discharge is simpliciter and not punitive in nature and therefore, no opportunity was required to be afforded to the petitioner before discharging him from service.
Further the order is ex facie innocuous and it 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.
Accordingly, there is no merit in this petition and the same is ::: Downloaded on - 15/04/2017 21:21:48 :::HCHP 22 dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.
.
(Tarlok Singh Chauhan), Judge.
October 5th, 2016 (sl/gr) of rt ::: Downloaded on - 15/04/2017 21:21:48 :::HCHP