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When Judge on probation can be discharged from service ?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2470 OF 2014

Mr. Girish Chandrakant Gosavi
Vs
The Chief Secretary

CORAM : R. M. SAVANT,SARANG V. KOTWAL,  JJ.
Pronounced on :­ 03rd May 2018

1 Rule,   having   regard   to   the   challenge   raised,   made   returnable forthwith and heard with the consent of the learned counsel for the parties.

2 The   vexed   issue   as   to   whether   the   allegations   against   a probationer are the “motive” or “foundation” for discharge of the probationer from service has once again engaged the attention of this Court in the above Writ Petition.

3 The above Writ Petition has been filed by the Petitioner who was a Judicial Officer being a Civil Judge Junior Division and Judicial Magistrate First Class challenging the communication dated 18/11/2013 issued by the Respondent No.3 discharging him from service.  The Petitioner also challenges the communication dated 12/11/2013 issued by the Legal Adviser and Joint Secretary,   Government   of   Maharashtra   which   is   also   to   the   same   effect. Incidentally   the   Petitioner   also   seeks   quashing   and   setting   aside   of   the recommendation   orders   dated   28/08/2013,   31/08/2013   and   02/09/2013 passed by the Probation Committee of this Court constituted for evaluating the probation of the probationers and for taking appropriate action as regards confirmation,   continuation   or   extension   of   the   probationary   period   of   the probationers.

4 The  factual  matrix involved  in the  above  Writ Petition  can be stated thus :­

The Petitioner went through the process for the selection to the post of Judicial Magistrate First Class and Civil Judge Junior Division (for short “JMFC and CJJD”) pursuant to the advertisement which was issued in that regard by the Maharashtra Public Service Commission (for short “MPSC).  As per his overall ranking in the said selection process the Petitioner was selected and appointed as the JMFC and CJJD.  In terms of the appointment letter the Petitioner was to be on probation for a period of two years and was to be confirmed only on an order being passed in that regard.  The Petitioner’s initial probation period of two years was therefore to come to an end on 06/06/2012. The Petitioner underwent training at the Maharashtra Judicial Academy, Uttan (for short “MJA), and ultimately took charge of the post of Joint Civil Judge Junior Division and Judicial Magistrate First Class, Ulhasnagar, Dist. Thane.

The Petitioner was also detailed for induction training of the MJA between 1st week of November and 2nd week of December 2011.

5 Since   the   Petitioner   was   on   probation,   the   Petitioner’s   Annual Confidential Reports as JMFC and CJJD for the said period were written by the Reporting Officers who were the Joint Director of MJA, Uttan (for the period of his training),   by the learned Principal District Judges, Thane for the period 2010­2011 and 2011­2012.   In  so far as the  Principal  District Judges are concerned, it was Shri S D. Mohod for the period 2010 to 31/03/2011 and thereafter Shri K. K. Sonawane, who is now a learned Judge of this Court.  The reports of the Principal District Judge as per the procedure are kept before the learned Guardian Judges appointed by the Hon’ble the Chief Justice for Thane District from time to time.   In so far as Thane District is concerned for the tenure   of   the   Petitioner  since  his  appointment  till   April  2012  the   Hon’ble Guardian Judge remained the same.   However, the Guardian Judges were changed in April 2012 and a new set of Guardian Judges were appointed for Thane District in the reshuffle that took place of the Guardian Judges.

6 Before   adverting   to   the   contents   of   the   Annual   Confidential Reports of the Petitioner which are part of the above Writ Petition, it would be necessary to make a reference to the anonymous complaint dated 18/10/2011 which was received by the Registry of the District Court.  It was stated in the said   complaint   that   the   Petitioner   though   presiding   over   as   a   Judicial Magistrate of Ulhasnagar was staying at Andheri, Mumbai and comes to the Court at around 11.30 a.m. to 12.00 noon.  He does the work of the Morning Court after 11.30 a.m.  He calls the advocates in his chamber and chit­chats with them, thereby undermining the confidence of the litigants.  It was further alleged that the Petitioner discusses about other judges in the presence of the lawyers.     He   discusses   about   different   articles/commodities.     He   sits   in chamber and carries out Court work.  He sits at 12.00 noon for the Morning Court and thereby creates difficulties for the staff, lawyers and litigants as reports cannot be prepared.  In view of the said anonymous complaint as also in view of the oral complaints which were received by the learned Principal District Judge, Thane a discreet enquiry as regards the  punctuality of  the Petitioner was carried out through the District Judge­3 at Kalyan.  The learned District Judge­3 gave a visit to the Morning Court on 21/04/2012 and on such visit he was found on dais.  The learned District Judge­3 thereafter to inquire about the  punctuality of the Petitioner checked the attendance register of the Morning Court from the month of February 2012 till the day of visit.  It was found that the Petitioner was absent for six days in February 2012,  for six days in March 2012   and also for six days in April 2012.   The learned Principal District   Judge   thereafter   stated   in   his   report   that   on   inquiries   with   the ministerial   staff   and   police   officials   attending   the   Morning   Court   it   was revealed that the Petitioner remains absent from duty in the Morning Court though he used to attend the regular Court.

7 It is required to be noted that prior to the said discreet enquiry the learned Principal District Judge in view of the oral complaints received as regards   the   punctuality   of   the   Petitioner   had   paid   a   surprise   visit   on 01/02/2012 when the Petitioner did not arrive in the Court till 11.30 am to 11.45 am and that there was no intimation about his absence from duty on that day i.e. 01/02/2012.  However at about 12.00 noon the concerned staff of the Court informed that a message was received from the Petitioner that he would not attend the Court as he was not keeping well.

It would now be necessary to refer to the Annual Confidential Reports of the Petitioner for the relevant period (gist of which is as under) :­

(I)     From 07th June 2010 to 14th August 2010

Performance was held to be good but needed improvement.  Behaviour was said to be good.

(II)     From 11th October 2010 to 31st March 2011

(Report of Principal District Judge Shri S.D.Mohod)

The  remark  was “Good”  in  respect  of  behaviour,  reputation,  judicial ability, and the overall assessment was “Good”.

REMARKS OF THE GUARDIAN JUDGE

The learned Guardian Judge  agreed with the  remark of the  learned Principal District Judge and his assessment.

(III)     Report Dated 11th May 2012 of the Principal District Judge Shri K. K. Sonawane

It is in this report that the remarks “not free from doubt”, “unpunctual”, “suspicious”,   “integrity   doubtful”,   “apathetic,   unenthusiastic”   are appearing   in   respect   of   the   conduct,   relations   with   staff,   integrity, interest in administrative matters against the said columns.  However, in respect   of   judgment   writing,   marshalling   of   evidence,   dealing   with material points, reference to rulings and legal language, nothing adverse is recorded against the Petitioner.  The learned Principal District Judge has   along   with   the   report   submitted   a   separate   sheet   in   respect   of reputation, integrity to which reference would be made.   The learned Principal   District   Judge   has   not   recommended   the   Petitioner   for completion of the probationary period and used the words “Not at all”. The learned Principal District Judge Shri K K Sonawane in his separate sheet/letter of the  same date i.e. 11/05/2012 has stated that he has had sufficient opportunity to supervise and monitor the conduct and demeanour of the concerned Judicial Officer.   He has further stated that his performance while discharging the judicial work appears to be “good and considerable one”, his conduct and demeanour being Judicial Officer is “suspicious and doubtful”, his integrity is also observed not free from blemish, he is mischievous and not punctual while attending the duty.  The learned Principal District Judge has in the said letter referred to his surprise visit on 01/02/2012 and the anonymous complaint   dated   17/10/2011.     The   learned   Principal   District   judge   has concluded that the Petitioner was not fit for being continued as a judicial officer..

(IV)     From  02nd June 2011 to 31st March 2012

( Report of the learned Principal District Judge Shri K K Sonawane) Not   punctual   in   observing   dais   timing,   habituated   to   leaving   headquarters without   permission,   unfair   and   indifferent,   suspicious   and doubtful,   dubious,   found   irresponsible   and   unreliable.     The   learned Principal   District   Judge   has   also   remarked   adversely   in   respect   of judgment writing, quality of judgments, capacity to marshall facts, and the overall assessment was “very poor”.  The learned Principal District Judge has also opined that the Petitioner “was not fit to continue as judicial officer for discharging the noble function of administration of justice”.

(V)REMARKS OF THE GUARDIAN JUDGE

The learned Guardian Judge has disagreed with the learned Principal District Judge.   He has observed that he did not find, in the material annexed, any allegation of corruption.   The learned Guardian Judge observed that the learned Principal District Judge  is rather harsh in his comments and that the judicial officer can be counselled and that he deserves a chance.

The said Annual Confidential Report for the  said period was placed before the  earlier  learned Guardian  Judge  on 18/04/2013 though he  had ceased to be the Guardian Judge of Thane District as a change had taken place in April 2012 but since the Annual Confidential Report was covering the period during which he was the Guardian Judge, the same was placed before him who whilst reviewing has made the remarks which are in the box as above.  The said Annual Confidential Report was also placed before the learned succeeding Guardian Judge, as the Petitioner’s case for confirmation or otherwise was to be taken up for consideration.   The learned succeeding Guardian Judge had directed   the   material   to   be   placed   before   him   on   the   basis   of   which   the comments were made by the learned Principal District Judge in the Annual Confidential Report of the year 2011­2012.  The same was communicated to the learned Principal District Judge by the Registrar General of this Court by letter dated 11/02/2013.  The learned Principal District Judge accordingly by his letter dated 15/02/2013 replied to the Registrar General of this Court in response to the said letter. In the said letter dated 15/02/2013 the learned Principal District Judge informed that he had ventured to draw the inference from the attending circumstances and forwarded a report to that effect.   He mentioned in the said letter that he had received several oral complaints from the members of the Bar, litigants and staff of the Court about the mode and manner in which the Petitioner used to discharge the judicial functions.  The learned Principal District Judge has further mentioned that the judicial officer used to attend the Court late and during the enquiry it was revealed that he used to commute from his residence at Andheri, Mumbai to Ulhasnagar, Thane District, without any permission.  He has further mentioned in the said letter about his visit to the Court of the Judicial Officer on 01/02/2012 on which day the Judicial Officer was found absent in the Court till 11.45 am.   He has further mentioned that there was no previous intimation about his absence from duty on that day.  The learned Principal District Judge has also adverted to the fact that despite the Judicial Officer residing at Andheri, Mumbai, he had   accepted  the   responsibility   of   the   Morning  Court   at  Ulhasnagar   since 21/03/2011 on account of which it was difficult for him to attend the Court at 8.30 am in the morning from his residence at Andheri, Mumbai.  The learned Principal   District   Judge   has   further   mentioned   that   he   has   received   the information that he used to do the entire work of Morning Court in the second half after 3.00 pm by keeping aside the work of the regular Court.  The learned Principal District Judge has thereafter mentioned that during his interaction with other Judicial Officers posted at Ulhasnagar, it transpired that the Judicial Officer always used to make comments that he would earn more in Corporate Sector than the Judiciary and that there was a gossip that the Judicial Officer joined the judiciary only for earnings and nothing else. The learned Principal District Judge has further referred to the fact that a judicial quarter was alloted to him at Bhiwandi with a pool car facility but he refused to occupy the same on the ground that he has procured the premises on rent at Kalyan after payment of deposit amount and that the deposit was a non­refundable one.

The   learned   Principal   District   Judge   was   of   the   view   that   the   said circumstances lead to a conclusion that the Judicial Officer is reluctant to reside   within   the   campus   of   the   Court   premises   accompanied   with   other Judicial Officers. The learned Principal District Judge has thereafter concluded that taking into consideration all the above circumstances it is revealed that the integrity of the Judicial Officer appears to be doubtful, suspicious and does not inspire confidence.  He has further commented that he had ventured to indulge in illegal activities at the threshold of his career and also attempted to mislead his   colleagues   as   well   as   superiors.     The   learned   Principal   District   Judge requested that his said report dated 15/02/2013  be placed before the learned succeeding Guardian Judge  for consideration.

8 As indicated above, since the case of the Petitioner was required to be  taken  up  for consideration  as regards  continuation  of  his probation  or discharge from service, his case was placed before the learned Guardian Judge for his recommendation along with the office submission, and the letter of the learned Principal District Judge dated 15/02/2013.   The learned Guardian Judge  made the following recommendation :­

“As   per   Principal   District   Judge,   Shri   Gosavi   may   be
discharged by extending his probation till the date on
which Government’s order is to be served on him”

Thereafter in terms of the procedure the case of the Petitioner was kept before the Probation Committee consisting of three Hon’ble Judges of this Court on 22/08/2013.     The   Hon’ble   Judges   of   the   Probation   Committee   reached   a unanimous conclusion that the services of the Petitioner were required to be discharged by extending his probation till the date on which the order of the Government is served on him.  However only in so far as one of the members of the Probation Committee is concerned, one of the options, out of the options which   were   stated   in   the   submission   made   by   the   office,   was   chosen   by circumscribing as ‘A’ approved “in view of the report of the learned Principal District  Judge  dated 15/02/2013”.    The  follow  up   action  pursuant  to  the decision   of   the   Probation   Committee   was   thereafter   taken.   The   learned Principal   District  Judge   has  thereafter   issued  the   order   dated   18/11/2013 discharging the Petitioner which was preceded by the order passed by the State Government dated 12/11/2013.  As indicated above, it is the said orders dated 18/11/2013 and 12/11/2013 which are taken exception to by way of the above Writ Petition.

9 The above Writ Petition has been replied to by the Respondent Nos.2 and 3 by filing an Affidavit in Reply of the learned Registrar (Legal and Research).  It is stated in the said Reply that as per the procedure the case of every judicial officer is placed before the Guardian Judge for the purpose of confirmation of probation.  For the said purpose, ACRs, special report of the Reporting   Officer   along   with   his   recommendations   for   suitability,   critical comments, his judgments, 3 judgments delivered contesting civil and criminal cases,   leave   record,   disposal   statistics,   vigilance   report   and   other   relevant material are scrutinized by the learned Guardian Judge.   It is further stated that the case of the probationary judicial officer is thereafter placed before the Probation Committee of the Hon’ble Judges which is constituted for the said purpose by the Hon’ble the Chief Justice.  The recommendations of the learned Guardian Judge pertaining to the suitability of the probationer is also placed before the Probation Committee.  The Committee on the basis of the material thereafter recommends about the suitability of the probationary judicial officer.

It is further stated in the reply that the case of the Petitioner was placed before the learned Guardian Judge in or about July 2012, the learned Guardian Judge on 06/07/2012 passed an order directing that the material on the basis of which the learned Principal District Judge has drawn his conclusion regarding the integrity of the officer be called for.  It is further stated that accordingly the Registrar General vide his letter dated 10/07/2012  and reminder letter dated 11/02/2013 requested the learned Principal District Judge, Thane to forward material   as   directed.     The   learned   Principal   District   Judge   accordingly submitted his report vide letter dated 15/02/2013 which has been termed as a critical report.  It is further stated that after the receipt of the said letter dated 15/02/2013 of the learned Principal District Judge, vigilance report was called for from the Registrar (Vigilance Department) in March 2013.   As per the vigilance report, one complaint was received against the Petitioner which was pending.  The case of the Petitioner was once again placed before the learned Guardian Judge for consideration along with copies of the judgments, ACR, critical comments of the learned Principal District Judge, letter of the learned Principal District Judge dated 15/02/2013, report of the Registrar (Vigilance Department),   statement   of   leave   record   of   the   Petitioner.     The   learned Guardian Judge upon considering the entire report was pleased to approve the discharge of the Petitioner. It is further stated that the case of the Petitioner was thereafter placed before the Probation Committee for consideration. The Probation Committee recommended that the Petitioner be discharged from service by extending his probation till the date on which the government Order is served on him.   This was communicated by the Registrar General to the Principal  Secretary, RLA, Government of  Maharashtra vide his letter dated 25/09/2013 with a request to issue necessary orders.   Accordingly by order dated 12/11/2013 issued in exercise of the powers conferred by Rule 13(4)(ii) (b)   of   the   Maharashtra   Judicial   Service   Rules   2008,   the   Petitioner   was discharged from services from 18/11/2013 when the order was served upon him.

10 An   Affidavit   in   Rejoinder   is   filed   on   behalf   of   the   Petitioner wherein the claim in the Affidavit in Reply that the entire material was placed before the Probation Committee is sought to be contested and it is sought to be reiterated that the report of the learned Guardian Judge who has disagreed with   the   learned   Principal   District   Judge   whilst   reviewing   the   ACR   was probably not placed before the Probation Committee.

11 In   terms   of   the   directions   issued   by   the   Division   Bench   as contained in the order dated 09/02/2018, an Additional Affidavit in Reply has been filed on behalf of the Respondent Nos.2 and 3.  It is stated in the said Reply that as per the practice along with the submission made by the Registry as regards the probationary period of the Petitioner all relevant material in the form of ACRs, vigilance report, disposal remarks, special report of the learned Principal District Judge, recommendations of the Hon’ble Guardian Judge were placed before the Probation  Committee.   It is further stated that the  said material includes the ACR of the year 2011­2012 which was placed before the Probation Committee. It is further stated that as per the longstanding practice the directions of the Hon’ble Judges of the Probation Committee were sought by   formulating   clauses   “A”,   “B”   and   “C”   in   the   said   submission   for administrative convenience.

12  SUBMISSION OF MS. NEETA KARNIK THE LEARNED COUNSEL APPEARING ON BEHALF OF THE PETITIONER :­

A] That Article 311 of the Constitution of India is not restricted to the persons who are holding substantive posts but the protection under the said Article would also be available to a probationer.

B] That the form of the order of termination is not decisive, but the real nature of the order has to be determined by reference to the material facts preceding the said order.

C] That if the order of discharge is challenged on the ground that it is stigmatic having regard to the attendant circumstances then it is the duty of the Court to lift the veil and see the reasons behind the impugned order.

D] That   since   in   the   instant   case   the   order   of   discharge   of   the Petitioner   is   on   account   of   the   special   report   of   the   learned Principal District Judge, Thane in which disparaging remarks as regards the conduct, character and integrity of the Petitioner are made, the same are stigmatic and therefore the Petitioner could not have been discharged without giving an opportunity to the Petitioner to explain the alleged circumstances which are against him.

E] That the conclusion which the learned Principal District Judge, Thane   has   reached   as   regards   the   unsatisfactory   work   and conduct   of   the   Petitioner   are   based   upon   unsubstantiated allegations.

F] That the discreet enquiry conducted by the learned District Judge­ 3, Kalyan as regards the Petitioner’s punctuality was behind his back and since the same is part of the material which is used against the Petitioner, the order of discharge is bad in law and liable to be set aside.

G] That due consideration has not been given to the remarks of the reviewing   authority   i.e.  the  learned   Guardian   Judge  who   had disagreed   with   the   views   expressed   by   the   learned   Principal District Judge and had accordingly modified the assessment of the learned Principal District Judge of the Petitioner from “Very poor” to “B ­ Good”

H] That the remarks of the reviewing authority that is the learned Guardian Judge who had disagreed with the views of the learned Principal District Judge do not seem to be part of the record that was placed before the Probation Committee and therefore the decision of the Probation Committee is vitiated on account of the non­consideration of the said material.

I] That   the   discharge   on   the   ground   that   is   “undesirable”   to continue, the probation would be stigmatic whereas the discharge on the ground that it is “unnecessary to continue” him would not be stigmatic.

J] That   in   the   absence   of   any   material   which   substantiates   the allegations   which   are   appearing   in   the   special   report   of   the learned Principal District Judge, the discharge of the Petitioner on the basis of the said report would be arbitrary and capricious.

K] That the Petitioner in the light of the remarks of the reviewing authority   deserved   to   be   given   a   chance   by   extending   the probationary  period,  the  Petitioner  therefore  apart from  being discharged unheard has also been discharged without being given an opportunity.

13 SUBMISSION   OF   MR.   P.   S.   DANI   THE   LEARNED   SENIOR COUNSEL APPEARING ON BEHALF OF THE RESPONDENT  NOS. 2 AND 3:­

i] That it is well settled that a probationer does not have a right to continue   and   his   appointment   is   governed   by   the   Rules   in question which in the instant case are the Maharashtra Judicial Service Rules, 2008 and especially Rules 13 and 14 thereof.

ii]  That   in   terms   of   the   Rules   there   is   no   requirement   of   the Petitioner being informed during his probationary period of any adverse material against him.

iii] That in terms of the office procedure the entire file containing the service record of the probationer is placed before the Probation Committee.   In   the   instant   case   the   remarks   of   the   learned Guardian Judge wherein he had disagreed with the assessment of the learned Principal District Judge have also been placed before the Probation Committee.

iv]  That the contents of the special Report dated 15/02/2013 of the learned Principal District Judge, Thane can be said to be by way of   the   assessment   of   the   learned   Principal   District   Judge   for determining the suitability of the Petitioner.

v]    That   assuming   that   the   said   remarks   are   in   the   nature   of allegations   against   the   Petitioner,   still   it   is   the   choice   of   the administration whether to enquire into the said allegations or discharge the probationer by an order of simple discharge.

vi]  That apart from the performance the conduct of the probationer assumes importance and is a relevant factor to be taken into consideration for arriving at a decision whether the probationer is to be continued or discharged.

vii] That since the allegations as regards the Petitioner’s punctuality were   received,   the  administration   was  entitled  to   carry   out  a discreet enquiry into the said allegations, which is in the nature of an input to judge the suitability of the Petitioner.

viii]  That the Probation Committee consisting of three Hon’ble Judges of   this   Court   has   arrived   at   a   decision   after   taking   into consideration all the relevant material which was placed before it. The contents of the said report dated 15/02/2013 of the learned Principal District Judge can therefore at the highest be said to be the motive and not the foundation for the order of discharge.

ix] That  it  is for  each learned  Guardian  Judge  to  make  his  own independent assessment and therefore even if the remarks of the learned   Guardian   Judge   who   had   disagreed   with   the   learned Principal District Judge were not before the subsequent Guardian Judge the same would not make any difference as regards the Petitioner’s discharge is concerned.

x]   That the administration  is entitled to adopt such measures to judge the suitability of a probationer and especially in this case a Judicial Officer, and the assessment which is done is only towards that end, and therefore it cannot be said that the discharge was on   unsubstantiated   allegations   and   therefore   arbitrary   and capricious.

xi] That the judgments relied upon on behalf of the Petitioner are clearly distinguishable on facts.

14 In   support   of   her   aforesaid   contentions,   the   learned   counsel appearing on behalf of the Petitioner Ms. Neeta Karnik sought to place reliance on the following judgments of the Apex Court :­

a] Samsher Singh V/s. State of Punjab and another; (1974) 2 SCC 831;

b] Anoop Jaiswal v/s. Government of India and another; (1984) 2 SCC 369;

c] Ishwar  Chand   Jain   v/s.  High  Court  of   Punjab    Haryana and another; (1988) 3 SCC 370;

d] The   Manager,   Govt.   Branch   Press   and   another   v/s.   D.   B. Belliawppa; (1991) 2 SCC 291 : AIR 1979 SC 429

e] Union of India Anr. v/s. Mahaveer C Singhvi; (2010) 8 SCC 220;

f] Registrar General, High Court of Gujrat and another v/s. Jayshree Chamanlal Buddhibhatti; (2013) 16 SCC 59

g] Ratnesh Kumar Choudhary v/s Indira Gandhi Institute of Medical Sciences, Patna, Bihar and others; AIR 2016 SC 467.

15 In support of his contentions, the learned Senior Counsel Shri P S Dani appearing on behalf of the Respondent Nos.2 and 3 sought to place reliance on the following judgments of the Apex Court and this Court :­

i] Dipti Prakash Banerjee v/s Satyendra Nath Bose National Centre for Basic Sciences, Calcutta ors; (1999) 3 SCC 60;

ii] Abhijit Gupta v/s S.N.B. National Centre, Basic Sciences ors.; (2006) 4 SCC 469;

iii] Rajesh Kohli v/s. High Court of Jammu Kashmir Anr.; (2010) 12 SCC 783;

iv] State Bank of India ors. v/s. Palak Modi Anr.; (2013) 3 SCC 607;

v] Rajesh Kumar Srivastava v/s. State of Jharkhand ors. (2011) 4 SCC 447;

vi] Girish   Satyanarayan   Shukla   v/s.   High   Court   of   Judicature   at Mumbai.   (Judgment   dated   4/8/2014   passed   in   Writ   Petition No.96/2007)

vii] Smita Rajendra Kadu v/s. State of Maharashtra ors. (Judgment dated 23/12/2015 passed in Writ Petition No.2814/2015)

viii] High Court of Judicature at Patna v/s. Pandey Mandan Mohan Prasad Sinha and others; (1997) 10 SCC 409.

16 At this stage it would be necessary to refer to the judgments which are relied upon on either side as they delineate the parameters within which the above Writ Petition is to be adjudicated.

JUDGMENTS   RELIED   UPON   ON   BEHALF   OF   THE   PETITIONER   BY   THE LEARNED COUNSEL MS. NEETA KARNIK :­

A] Samsher Singh v/s State of Punjab and another (supra) :­

The said judgment is of the 7 Judges Bench of the Apex Court.  The said 7 Judge Bench was constituted to consider whether the decision in Sardari Lal v/s. Union of india’s case reported in (1971) 1 SCC 411 correctly lays down the law where the President or Governor is to be satisfied that is his personal satisfaction.   The Appellants in the said case viz. Samsher Singh and Ishwar Chand   Agarwal   who   had   filed   separate   Civil   Appeals   were   appointed   on probation in the Punjab Civil Services (Judicial Branch).  Their services came to be terminated by an order issued by the Governor of Punjab under Rule 9 of the Punjab Civil Services Rules.   In the said case certain misconducts were alleged against the Appellants. The High Court in the case of Appellant Ishwar Chand Agarwal requested the Government to depute the Director of Vigilance to hold an inquiry in the said misconducts.  The Director of Vigilance recorded the statements of the witnesses behind the back of the Appellants.  The enquiry was conducted to ascertain the truth of the allegations of misconduct.  In the said case neither the report nor the statements recorded by the Inquiry Officer were furnished to the Appellant Ishwar Chand Agarwal.  Based on the Enquiry Report the services of the Appellant` were terminated.  In so far as Appellant Samsher Singh was concerned, a show cause notice came to be issued to him asking him why his services should not be terminated.  In the said show cause notice   four   allegations   were   made.   The   Appellant   Samsher   Singh   showed cause. The Appellants services thereafter came to be terminated. In so far as Punjab Civil Services (Judicial  Branch) is concerned, Rule  9 provides that where it is proposed to terminate  the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account   of   the   unsatisfactory   record   or   unfavourable   reports   implying   the unsuitability   for service the probationer shall be apprised of the grounds of such proposal, and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the appointment. The Apex Court held that if the services of a probationer are terminated on the basis of a report based on misconduct then it violates Article 311 of the Constitution of India.  The Apex Court held that the substance of the order of termination and not the form would be decisive, whether it was really by way of punishment.  The Apex Court also adverted to the judgment in Champaklal G. Shah Vs. Union of India  reported in  (1964) 5 SCR 190  wherein it was held that a preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employees has been held not to attract Article 311 of the Constitution of India.

B] Anoop Jaiswal v/s. Government of India and another (supra) The Appellant was a probationer in the Indian Police Service (IPS) the allegations against the Appellant was that he had instigated the other trainees not to attend the gymnasium where it was proposed to conduct PT/unarmed combat practice.   An explanation was called for from the Appellant.   The Director without holding an enquiry into the alleged misconduct recommended to the Government of India that the Appellant should be discharged from services.  On the basis of the said recommendation the Government of India passed the order of discharge.  In the said case the Appellant was singled out for punishment whereas the other trainees were let scot free .  The Apex Court in the facts of the said case held that though the noting in the file of the Government was irrelevant, the cause for the order cannot be ignored.   The Apex Court held that 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.     On   such   reading   if   the   alleged   act   of misconduct was the cause of the order, but for that incident it would not have been passed then it it 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 required by Article 311(2).  In the said judgment the Apex Court can be said to have carved out the distinction between the motive and foundation for the order of discharge.

C] Ishwar Chand Jain v/s. High Court of Punjab and Haryana and another  (supra)

In the said case the Appellant was appointed as a Additional District and Sessions Judge on probation.   Whilst he was on probation certain incidents took place as a result of which  the Bar Association of Narnaul where he had been transferred, passed a Resolution against him, there were also complaints made by some advocates.   The Vigilance Judge of the Punjab and Haryana High Court was directed to hold an enquiry, the Vigilance Judge after holding an enquiry did not record any finding that the Appellant was guilty of any corrupt nature or that he had acted unjudicially.  The High Court terminated the services of the Appellant on the ground of they being unsatisfactory.  The Apex Court set aside the said termination on the ground that some of the materials which were taken into account were non­existent, the others were not relevant, the allegations were unsubstantiated.  The Apex Court observed that  the  resolution  passed by  the  Bar  Association  was  unjustified  and  the complaints made by the advocates were motivated which did not deserve any credit.

D] The Manager,  Govt.  Branch Press and another D. B. Belliawppa (supra)

In the said case the employee was served with a show cause notice questioning his integrity and fidelity but the Government ultimately adhered to stand that there was no nexus between the show cause notice and termination of service.  The Apex Court held that if the services of a temporary Government Servant   are   terminated   not   on   the   ground   of   unsuitability,   unsatisfactory conduct or the like which would put him in a class apart from other temporary servants who are retained then a question of unfair discrimination would arise. The Apex Court held that in such a case it would be the duty of the authority to dispel the said charge by disclosing to the court the reason or motive which impelled him to take the decision.

E] Union of India and others v/s Mahaveer C Singhvi (supra)

The Respondent was appointed to the Indian Foreign Services (IFS) and was deployed in East Asia Division of the Ministry of External Affairs.   The Respondent   was   not   alloted   the   language   of   his   choice   for   study   as   a compulsory   foreign  language   but  was   allotted  Spanish   which  was   his   last choice.  The said language i.e. the choice of the Respondent was allotted to an officer who was lower in rank in the merit list than the Respondent.   The Respondent represented against the same but was asked to remain silent on the said issue.     It seems that an enquiry was conducted in relation to a complaint   alleged   to   have   been   made   by   one   “N”   regarding   threatening, abusive and sexually explicit remarks allegedly made by the Respondent to her daughter.     The   Respondent   was   served   with   the   order   of   discharge   on 13/06/2002.  The Respondent challenged the said order on the ground that it was not simpliciter discharge but was a result of the enquiry conducted against him  behind  his  back.     In   the   said  case   the   State  itself  admitted  that  the discharge   order   of   the   Respondent   probationer   was   on   account   of   the Respondent’s misconduct.  The High Court set aside the discharge order on the ground   that   the   entire   object   was   to   camouflage   the   intention   of   the Petitioners, which was to remove the Respondent for something about which they had convinced  themselves but did not think it necessary  to give  the Respondent an opportunity to clear his name.   The Apex Court affirmed the judgment of the High Court as the enquiry conducted formed the foundation of the said order discharge.

F] Registrar General, High Court of Gujarat and another v/s  Jayashree Chamanlal Buddhbhatti (supra)

In the said case the Respondent was appointed as a Civil Judge Junior Division on probation.  In the said case the Respondent had complained to the District Judge against her subordinate staff of which no cognizance was taken by the learned District Judge.  The Respondent was communicated the adverse remarks,   against   which   she   represented.     A   discreet   enquiry   and   later   a preliminary enquiry was conducted into the adverse allegations against her without affording an opportunity of hearing to the Respondent.   The said enquiry was conducted by the learned District Judge who had refused to take cognizance of the complaint made by the Respondent against her subordinate staff.  The services of the Respondent came to be terminated.  The High Court set aside the termination as the same being in breach of Article 311 of the Constitution of India inasmuch as she was not informed about the charges against her nor she was given an opportunity of being heard in respect thereof. The   High   Court   came   to   a   conclusion   that   the   same   was   not   a   case   of termination simpliciter of a probationary officer. The Apex Court upheld the order of the High Court having regard to the facts on record.  The Apex Court observed that the preliminary inquiry conducted against the Respondent in the said case cannot be said to be an innocent one only to assess her suitability.  It is   apparent   that   certain   aspersions   were   cast   on   the   character   of   the Respondent during the course of the conduct of the inquiry on her suitability.

G] Ratnesh Kumar Choudhary v/s. Indira Gandhi Institute of Medical Sciences, Patna Bihar and others (supra)
I
n the said case a complaint was received by the Vigilance Department, Government of Bihar on 03/11/2004 relating to the illegal appointment of the Appellant on the post of Chest Therapist on the ground that the Appellant did not possess the qualification required for the said post.   In pursuance of the said complaint, an enquiry was conducted by the Deputy Superintendent of Police who submitted a report to the Deputy Inspector General of Police, Hibar, Patna.   The   reports   reflected   on   various   aspects   and   pointed   out   that   the appointment was illegal.  On the basis of the said report the Joint Secretary in the Department of Health requested the Director IGIMS to intiate a proceeding for termination of the services of the Appellant by giving a show cause notice. On the basis of the said communication, a show cause notice came to be issued to the Appellant. The Appellant sent his reply on 20/03/2005 and asked for the copy of the complaint as well as the entire report submitted by the Vigilance Department.  Despite the said request made by the Appellant all the documents were not supplied to him which the Appellant considered vital.  However, the Appellant submitted his reply.  The said reply was found to be unsatisfactory and the services of the Appellant came to be terminated.  It appears that in the report   which   was   submitted   comments   on   his   behaviour,   knowledge   of working, his conduct, his mis­behaviour, imposition of earlier punishment and disobedience   shown   by   him   to   his   seniors   were   made.     It   was   therefore concluded   that   the   termination   of   the   Appellant   was   not   termination simpliciter. Under the guise of passing an order of termination simpliciter, the authorities   have   in   many   a   way,   attached   stigma   which   makes   the   order absolutely stigmatic.  The Apex Court did not agree with the view expressed by the Division Bench that no departmental enquiry was required to be held as it was only an enquiry to find out the necessary qualification for the post of Chest Therapist.  The Apex Court was of the view that had the factual score been so, the said analysis would have been treated as correct, but unfortunately the exposition of factual matrix is absolutely different.  The Apex Court accordingly set aside the order passed by the Division Bench of the High Court and directed reinstatement of the Appellant in service.

JUDGMENTS RELIED UPON ON BEHALF OF THE RESPONDENT NOS. 2 ND 3 BY THE LEARNED SENIOR COUNSEL SHRI P. S. DANI :­

i] Dipti Prakash Banerjee v/s Satyendra Nath Bose National Centre for Basic Sciences, Calcutta others (supra) The said judgment of the Apex Court is an exposition a regards the criterion for differentiating between “foundation” and “motive”.   The Apex Court held that if findings are arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, simple order of termination is to be treated as “founded” on the allegations and will be bad. If however enquiry was not held, no findings 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. Similarly if employer did not   want   to   enquire   into   truth   of   allegations  because   of   delay   in   regular departmental   proceedings   or   he   was   doubtful   about   securing   adequate evidence, the allegations would be motive and not foundation and simple order of termination would be valid.  In the facts of the said case wherein during the first one year of probation, a letter dated 11/12/1995 was served on the Appellant.  The said letter states that the Appellant has been preparing false bills and that he has misbehaved with women academic staff members.  But in the impugned order terminating the services of the probationer it was stated that   the   order   of   termination   was   being   passed   because   of   the   conduct, performance, ability and capacity of the Appellant during the whole period. The Apex Court was of the view that the same would clearly take in the facts stated in the letter dated 11/12/1995. The Apex Court further observed that it would  be noticed that the letter dated 11/12/1995 does not merely say that there are such complaints against the appellant but it says conclusively that the appellant had “prepared false” bills and “misbehaved” with women academic staff members.  The Apex Court observed that if these were referred to as mere allegations,   it   would   have   been   a   case   of   motive,   but   as   these   definitive conclusions   of   misconduct   are   evident   on   the   face   of   this   letter   dated 11/12.1995 and this letter falls within the “whole period”, the conclusion is inescapable that these findings were part of the foundation of the impugned order and it is not a case of mere motive.

ii] Abhijit Gupta v/s S.N.B. National Centre, Basic Sciences others (supra)

In the above case in the order of termination reference to earlier letters, in which the probationer had been called a person of “perverted mind” and “dishonest,  duffer   having   no  capacity   to  learn”,   the   Apex   Court   held   that despite the use of such intemperate language, the order read as a whole, in the said case indicated that the reason for termination was the absence of hope for improvement in the probationer.  The Apex Court upheld the view of the High Court that the reference to earlier letters, although unnecessary, did not reflect any   malice   or   bias,   and  hence   the   contention   of   the   probationer  that   his termination was stigmatic and not simpliciter was rejected by the Apex Court.

iii] Rajesh   Kohli   v/s.   High   Court   of   Jammu     Kashmir     Another (supra)

The Apex Court in the facts of the said case wherein the Full Court of High  Court  after  assessment  of  work and  conduct  of   the  Probationer  had extended   his   probation   period   from   24/08/2000   to   05/05/2003   but recommended his case for termination as the personal record of the petitioner revealed that (1) there was a criminal complaint against him for his conduct when he was an advocate; (2) complaint of misbehaviour and problem causing in District of posting; and (3) that the Petitioner had not joined his place of posting for certain period for which an explanation had been sought from him. The Apex Court rejected the contentions urged on behalf of the probationer that   the   termination   order   was   illegal   and   without   jurisdiction   as   no opportunity of hearing was given to him  prior to passing of  the  order of termination.   The Apex Court held that the services rendered by a judicial officer   during   probation   are   assessed   not   solely   no   the   basis   of   judicial performance but also on the probity as to how one has conducted himself. iv] State Bank of India others v/s. Palak Modi another (supra) The Apex Court in the said case held that for judging the suitability of the probationer or for his further continuation in service for confimration, if an enquiry is the basis for taking a decision to terminate his services, then the action of the competent authority cannot be castigated as punitive.  However, where allegation of misconduct continues foundation of action taken, then ultimate decision taken by competent authority can be nullified on ground of violation of rules of natural justice.

v] Rajesh Kumar Srivastava v/s. State of Jharkhand others (supra) In the said case a complaint was received as regards the integrity of the Appellant as it was alleged against him that he had discharged some accused persons despite rejection of the Revision Application by the High Court earlier. The High Court on receipt of the said complaint called for a report from the District and Sessions Judge, Dhanbad.  On receipt of the said communication, the   District   and   Sessions   Judge,   Dhanbad,   sent   a   letter   to   the   Appellant directing him to offer his remarks, which were submitted by the Appellant. The said remarks and report along with confidential report of the Appellant were submitted by the District and Sessions Judge, Dhanbad before the High Court. Thereafter the Zonal Judge concerned referred the matter to the Standing Committee for further action.  In terms of the decision of the Zonal Judge, the then Chief Justice of the High Court also referred the matter to the Standing Committee by way of recording an order on 01/05/2003.   The matter was considered in the meeting of the Standing Committee held on 08/07/2003. After considering the performance and the suitability of the Appellant, it was resolved that the matter be referred to the Full Court for consideration and a decision as to whether or not the continuation of the service of the Appellant was required.   Consequent thereupon the matter was placed before the Full Court wherein it was resolved by the Full Court that the continuation of the service   of   the   Appellant   was   no   longer   required   and   that   he   should   be discharged. Consequent thereupon the resolution of the Full Court was sent to the Government.  The Government of Jharkhand accordingly issued an order of discharge.     The   said   order   of   discharge   was   challenged   on   behalf   of   the Appellant as the same having been passed without holding an enquiry which amounts to violation of the principles of natural justice and also amounting to casting a stigma in the career of the Appellant.   The said contention was negatived by the Apex Court.  The Apex Court held that the High Court had taken a decision considering the Appellant’s overall performance, conduct and suitability for the job.     Whilst taking a decision in this regard neither any notice was required to be given to the Appellant nor he was required to be given an opportunity of hearing.  The Apex Court held that it was not a case of removal as sought to be made out by the Appellant, but was a case of simple discharge from service.

vi] Girish   Satyanarayan   Shukla   v/s.   High   Court   of   Judicature   at Mumbai. (supra)

The Division Bench of this Court in the said case was concerned with the discharge of a Civil Judge, Junior Division and Judicial Magistrate First Class who was appointed on probation.  The Division Bench in the facts of the said case wherein the probationary period of the judicial officer was extended and no improvement was shown in the said extended period held that the order discharging him from services cannot be said to be punitive.   The Division Bench has referred to the judgments of the Apex Court in 1] Samsher Singh v/s. State of Punjab; 2] State Bank of India and others v/s. Palak Modi and another;   3]   Rajesh   Kumar   Srivastava   v/s.   State   of   Jharkhand   and   others, amongst others to come to a conclusion that the termination of the Petitioner on the ground of he being unsuitable to continue as a judicial officer cannot be said to be a stigmatic based on any misconduct and misdemeanor.

vii] Smita Rajendra Kadu v/s. State of Maharashtra ors. (supra)

The Division Bench of this Court in the said case held that the High Court   performs  a  solemn  duty   to  evaluate  and   appraise   the   services   of   a judicial officer before confirming him or her in service.  The facts of the said case were that there were allegations against the Petitioner in respect of her integrity as well as judgment writing was said to suffer from 4 basic infirmities. The Division Bench rejected the contention raised in the said case that merely because something is written in bold in the ACR would not mean that High Court has been influenced by that portion alone or it has based its decision on the same without taking into consideration the entire record and assessing it in a  overall   manner.    The  Division   Bench   thereafter   referred  to   the   decision making process ultimately leading to the order of termination.  The Division Bench has observed that the Probation Committee comprising of 4 learned Judges of this Court had in its ultimate order expressed its agreement with the remarks of the learned Guardian Judge.

viii] High  Court  of   Judicature  at   Patna   v/s.   Pandey  Mandan  Mohan Prasad Sinha and others; (supra)

The Apex Court in the said case held that uncommunicated adverse material can be taken into consideration for assessment of suitability of the probationer and forming decision to terminate his services.   The Apex Court further held that consideration of the complaints regarding integrity, character and morality of the probationer and his alleged indulgence in drinking and gambling, in taking a decision to terminate his services does not show that the decision is punitive.  The Apex Court had made the said observations in the Appeal which was filed by the High Court after the Writ Petition in the High Court   filed   by   the   Respondent   was   allowed   on   the   ground   of   noncommunication of adverse remarks prior to the decision dated 19/06/1985 vitiated the order of termination of the services of the Respondent.  The order of termination was passed by way of punishment without complying with the requirements of Article 311(2) of the Constitution of India.

CONSIDERATION

17 We   have   heard   the   learned   counsel   for   the   parties   and   have bestowed our anxious consideration to the rival contentions.  We have already prefaced the instant judgment by observing that in the instant case the vexed question of whether the allegations are the “motive” or “foundation” for the discharge has once against engaged the attention of this Court.  Ingrained in the said issue is  the issue as to whether the discharge of the Petitioner in the instant case is by way of simple discharge or is punitive in nature.

18 Before proceeding to decide the said issue it would be necessary to make a reference to the Rules which are applicable in so far as appointment of the Petitioner on probation is concerned.  The relevant Rules are Rule 13 and Rule 14 of the Maharashtra Judicial Service Rules, 2008.  The same read thus :­

“PROBATION AND OFFICIATION
13  Probation and Officiation.: (1)  All appointments to
the service by nomination 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 two years.
(4)  Six months before the end of the period or 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 was appointed or promoted; and
(i)  if found suitable, 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 finds that the person
is   not   suitable   to   hold   the   post   to   which   he   was
appointed or promoted, as the case may be, it shall by
Order,
a)  if he is a promotee, revert him to the post which
he held prior to his promotion;
(b)  if he is a probationer, discharge him from service.
(5)  No   person   shall   be   deemed   to   have   satisfactorily
completed the period of Probation or Officiation, as the
case may be, unless so declared by a specific Order to
that effect.
14  Discharge   of   a   Probationer   during   the   period   of
Probation: Notwithstanding anything contained in rule
13, the Appointing Authority may, at any time during
the   period   of   probation,   discharge   from   services,   a
probationer   on   account   of   his   unsuitability   for   the
service.”

A reading of Rule 13 therefore indicates that all appointments by nomination shall be on officiating basis for a period of two years. The Rule provides for extension of the probationary period by such period not exceeding two years. The suitability of the person appointed on probation would have to be   considered   six   months   before   the   end   of   the   probationary   period   or extended period.  The Appointing Authority on such consideration can revert the person if he is a promotee and if he is a probationer, discharge him from service.  There has to be specific order as regards the satisfactory completion of probationary period.

In   so   far   as   Rule   14   is   concerned,   it   confers   powers   on   the Appointing Authority, notwithstanding anything contained in Rule 13, at any time during the period of probation, to discharge from service, a probationer on account of his unsuitability for service.

19 There is no dispute about the fact that in the instant case the Petitioner has been discharged under Rule 13(4)(ii)(b) of the said Rule as above on consideration of his suitability.

20 It would also be necessary, at this stage,   to refer to the order discharging or terminating the services of the Petitioner. The said order reads thus :­

“Hon’ble  High  Court  had  taken   decision   to  dispense
with the service of Girish Chandrakant Gosavi, 5th  Jt.
Civil Judge, Jr. Div. And Judicial Magistrate FC, under
chapter 4   Rule 13(4)(ii)(b) of Maharashtra Judicial
Service   Rules   2008,   extending   his   probation   till   the
date of discharge of his service.
Accordingly, the service of Girish Chandrakant Gosavi,
5th Jt. Civil Judge, Jr. Div. and JMFC, is dispensed with
since 18/11/2013 a.n.

The official charge of 5th  Jt. Civil Judge, Jr. Div. And
JMFC, Ulhasnagar is entrusted with 4th Jt. Civil Judge
and JMFC, Smt. S G Jawadwar, till further order.
All   concerned   to   take   note   of   the   said   order   and
handing   over   charge   report   be   sent   to   this   office
forthwith. (in 4 copies).”

Hence the order of discharge only refers to the decision of the High Court to discharge the Petitioner by taking recourse to Rule 13(4)(ii)(b) of the said Rule.

21 Though in the earlier part of this Judgment we have culled out what has been held by the Apex Court in Samsher Singh V/s. State of Punjab and another (supra); Rajesh Kohli v/s. High Court of Jammu Kashmir Anr. (supra),   State  Bank of  India   ors.  v/s.  Palak Modi   Anr. (supra)  and Gujarat Steel Tubes Ltd. v/s. Gujarat Steel Tubes Mazdoor Sabha, reported in AIR 1980 SC 1896  (as referred in Ratnesh Kumar Choudhary v/s. Indira Gandhi Institute of Medical Sciences).  It would also be necessary to refer to the relevant paragraphs of the said judgments :­

In Samsher Singh v/s. State of Punjab :­

“64 Before a probationer is confirmed the authority
concerned is under an obligation to consider whether
the work of the probationer is satisfactory or whether
he is suitable for the post. In the absence of any Rules
governing a probationer in this respect the authority
may   come   to   the   conclusion   that   on   account   of
inadequacy  for  the  job or  for  any temperamental  or
other   object   not   involving   moral   turpitude   the
probationer is unsuitable for the job and hence must be
discharged.   No   punishment   is   involved,   in   this.   The
authority may in some cases be of the view that the
conduct of the probationer may result in dismissal or
removal on an inquiry. But in those cases the authority
may not hold an inquiry and may simply discharge the
probationer with a view to giving him a chance to make
good in other walks of life without a stigma at the time
of termination of probation. If, on the other hand, 838
the probationer is faced with an enquiry on charges of
misconduct   or   inefficiency   or   corruption,   and   if   his
services are terminated without following the provisions
of   Article   311(2)   he   can   claim   protection.   In  Gopi
Kishore Prasad v. Union of India A.I.R. 1960 S.C. 689
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 imcompetent officer.

65 The   fact   of   holding   an   inquiry   is   not   always
conclusive.   What   is   decisive   is   whether   the   order   is
really by way of punishment. (See State of Orissa v.
Ramnarain Das [1961] 1 S.C.R. 606). If there is an
enquiry the facts and circumstances of the case will be
looked into in order to find out whether the order is one
of dismissal in substance, (See Madan Gopal v. State
of Punjab [1963] 3 S.C.R. 716). In R. C. Lacy v. State
of Bihar Ors. (Civil Appeal No. 590 of 1962 decided
on 23 October, 1963)  it  was held  that  an  order  of
reversion passed following an enquiry into the conduct
of the probationer in the circumstances of that case was
in   the   nature   of   preliminary   inquiry   to   enable   the
Government   to   decide   whether   disciplinary   action
should be taken. A probationer whose terms of service
provided that it could be terminated without any notice
and without any cause being assigned could not claim
the protection of Article 311(2). (See R. C. Banerjee v.
Union of India [1964] 2 S.C.R. 135.).  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/s.
Union of India [1964] 5 S.C.R.190)

(Emphasis supplied)

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  India   A.I.R.  1964   S.C.
449).

66 If the facts and circumstances of the case indicate
that the substance of the order is that the termination is
by way of punishment then a probationer is entitled to
attract Article 311. The substance of the order and not
the form would be decisive. (See K. H. Phadnis v. State
of Maharashtra.  [1971] Supp. S.C.R. 118).

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 Bhikshuk Mishra; (1971) 2 SCR 191).
(Emphasis supplied)

In Rajesh Kohli v. High Court of Jammu and Kashmir 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.
(Emphasis supplied)

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.
(Emphasis supplied)

32 Upright and honest judicial officers are needed not only to bolster the image of the judiciary in the eyes of litigants, but also to sustain the culture of integrity, virtue and ethics among judges. The public’s perception of   the   judiciary   matters   just   as   much   as   its   role   in dispute resolution. The credibility of the entire judiciary is often undermined by isolated acts of transgression by a   few   members   of   the   Bench,   and   therefore   it   is imperative to maintain a high benchmark of honesty, accountability and good conduct.

In State Bank of india v/s. Palak Modi :­

25 The ratio of the above noted judgments is that a probationer has no right to hold the post and his service can be terminated at any time during or at the end of the   period   of   probation   on   account   of   general unsuitability for the post held by him. If the competent authority holds an inquiry for judging the suitability of the probationer or for his further continuance in service or for confirmation and such inquiry is the basis for taking decision to terminate his service, then the action of   the   competent   authority   cannot   be   castigated   as punitive.  However,   if   the   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.
(Emphasis supplied)

In Gujarat Steel Tubes Ltd. v/s. Gujarat Steel Tubes Mazdoor Sabha :­

“54 On   the   contrary,   even   if   there   is   suspicion   of
misconduct, the master may say that he does not wish
to bother about it and may not go into his guilt but may
feel like not keeping a man he is not happy with. He
may   not   like   to   investigate   nor   take   the   risk   of
continuing a dubious servant. Then it is not dismissal
but   termination   simpliciter,   if   no   injurious   record   of
reasons or punitive cut­back 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.”
(Emphasis supplied)

What flows from the aforesaid judgment is that if there is a suspicion of misconduct, the discretion is of the employer to go into it or he may not go into the guilt of the probationer but would not like to keep a man he is not happy with.

In the said judgments it has also been held that if an enquiry is held by the Competent Authority for judging the suitability of the probationer or for his further continuation in service or for confirmation, and such an enquiry is the basis for taking decision to terminate his service, then the action of the Competent Authority cannot be castigated as being punitive.

22 Now coming to the facts of the instant case, as indicated above, the Petitioner’s initial period of probation was come to an end on 06/06/2012. In so far as Annual Confidential Report of the year 2010­2011 is concerned, we have   already   adverted   to   the   contents   thereof.     In   so   far   as   the   Annual Confidential Report of the year 2011­2012 is concerned, the learned Principal District Judge, who had by then changed, had assessed the judgment writing, language etc of the Petitioner and nothing adverse against the Petitioner was recorded in  so far  as the  said aspect is concerned. It is in  respect of his punctuality and integrity that the learned Principal District Judge has, by his accompanying sheet, mentioned the reasons for the remarks that he had made in the Annual Confidential Report.  The said Annual Confidential Report was placed before the learned Guardian Judge who had disagreed with the learned Principal District Judge and had changed the overall assessment from “Very Poor” to “B­Good”.

In so far as the Annual Confidential Report for the period 2011­ 2012   is   concerned,   since   by   that   time   the   learned   Guardian   Judge   had changed, and the learned Guardian Judge, who had come in place of the learned Guardian Judge who had disagreed with the learned Principal District Judge, had asked for the material in respect of the remarks made by the learned   Principal   District   Judge,   since   he   was   required   to   make   the recommendation in respect of the Petitioner.   The Registrar General of this Court vide his letter dated 10/07/2012  and reminder letter dated 11/02/2013 requested   the   learned   Principal   District   Judge,   Thane   to   furnish   the   said material.     The   learned   Principal   District   Judge   by   his   report   letter   dated 15/02/2013 had replied to the said letters and had mentioned therein that the remarks made by him were made on the basis of the attendant circumstances. The learned Principal District Judge has virtually reiterated in the said letter dated 15/02/2013 what he has been stated in his letter dated 11/05/2012 and described the conduct, integrity of the Petitioner in a particular manner.

23 It is required to be noted that since oral complaints were received by   the   learned   Principal   District   Judge   as   regards   the   punctuality   of   the Petitioner, the learned Principal District Judge, as mentioned in his letter dated 11/05/2012   had   made   a   surprise   visit   to   the   Court   of   the   Petitioner   at Ulhasnagar on 01/02/2012 on which day the Petitioner was not found sitting on dais until 11.45 am and then a message was received from the Petitioner at about 12.00 noon that the Petitioner was unwell and hence would not attend the Court on the said day.  The learned Principal District Judge has also found that though the Petitioner was posted at Ulhasnagar, District Thane, he was residing at Andheri in Mumbai and was commuting between Andheri and Ulhasnagar without obtaining permission. He was also found that though the Petitioner was allotted service quarters, he continued to reside in a flat at Kalyan which he had obtained on leave and license basis and the explanation given by the Petitioner was that he had given a non­refundable deposit. In   view   of   the   anonymous   complaint   which   was   received   as regards the Petitioner’s punctuality in attending the Court a discreet enquiry was conducted through the learned District Judge­3, Kalyan.   The learned District Judge­3, Kalyan had visited the Court of the Petitioner on a particular day when the Petitioner was found sitting on the dais but during the course of the said discreet enquiry it was revealed that the Petitioner was doing the work of the Morning Court in the afternoon which resulted in creating difficulties for the litigants, advocates and the staff.  The learned District Judge­3, Kalyan on checking the muster roll found that the Petitioner was on leave for six days each in February, March and April 2012.

24 Now coming  to the  submission  of  the  learned  counsel  for  the Petitioner that the report of the reviewing authority i.e. the learned Guardian Judge   who   had   disagreed   with   the   learned   Principal   District   Judge   was probably   not   placed   before   the   Probation   Committee   and   therefore   the Probation Committee had taken a decision without taking into consideration the said report.  In view of the said submission, we had directed the learned Senior Counsel appearing for the Respondent Nos. 2 and 3 to make available to us the file of the Petitioner which was placed before the Probation Committee. The learned Senior Counsel had accordingly placed the file of the Petitioner before us and highlighted the material in the file by flagging the same. We have perused the file in our chamber.   On such perusal we found that the reviewing report of the learned Guardian Judge who had disagreed with the learned Principal   District   Judge   is   part   of   the   file   which   was   placed   before   the Probation Committee as also the recommendation of the learned succeeding Guardian Judge was also part of the file.  Hence the entire record was before the   Probation   Committee   when   it   took   the   decision   on   22/08/2013   for discharging the Petitioner.   Hence we do not find any substance in the said contention of the learned counsel for the Petitioner.

25 It was also sought to be contended on behalf of the Petitioner that the reviewing report of the learned Guardian Judge who had disagreed with the   learned   Principal   District   Judge   was   not   placed   before   the   learned succeeding Guardian Judge before whom the Annual Confidential Report for the year 2011­2012 was placed for the purposes of his recommendation.  It is true that the report of the earlier Guardian Judge was not placed before the learned succeeding Guardian Judge, the same, as we were informed, was for the reason that the earlier Guardian Judge had made the reviewing report in January   2013   whereas   the   file   was   placed   before   the   learned   succeeding Guardian Judge in July 2012 for his recommendation after there was a change in the Guardian Judges for different Districts in April 2012 In   our   view,   assuming   that   the   report   of   the   earlier   learned Guardian Judge was not before the learned succeeding Guardian Judge, the same  would  not  make   any  difference  as  the  learned  succeeding  Guardian Judge has made his own recommendation, which he was required to do as per the procedure.  Secondly the decision as to whether to discharge or confirm is ultimately the decision of the Probation Committee before which Committee as indicated above the entire file was placed by the administration.

26 Though   the   learned   counsel   for   the   Petitioner   advanced submissions   having   different   hues,   the   said   submissions   can   ultimately   be crystallized into one submission namely that the order of discharge is stigmatic and therefore the Petitioner was required to be given an opportunity.  The said submission   is   principally   founded   on   the   language   used   by   the   learned Principal District Judge in his letter dated 11/05/2012 and the critical report dated   15/02/2013   and   the   discreet   enquiry   which   was   held   against   the Petitioner which according to the learned counsel was behind the back of the Petitioner.

In so far as the letter dated 11/05/2012 and the critical report dated 15/02/2013 are concerned, as indicated above, the learned Principal District Judge has reiterated what he has stated in his letter dated 11/05/2012. It   is   required   to   be   noted   that   the   said   letter   dated   11/05/2012   is   an accompaniment to the Annual Confidential Report of the Petitioner for the year 2010­2011.  A perusal of the said report would indicate that in so far as the judgment writing, language, recording of evidence is concerned, the remarks of the learned Principal District Judge can be said to be positive.  It is in respect of his relations with Bar, conduct and integrity, that the learned Principal District Judge has used the words like mischievous, dubious, unpunctual, integrity not free from doubt, unfair and indifferent, irresponsible and unreliable in the said report which he has reiterated in the critical report dated 15/02/2013. Mere use of the said words by the learned Principal District Judge in his letters would not take away the fact that by the said letters the learned Principal District Judge had communicated to the High Court his assessment as regards the suitability of the Petitioner for continuation or otherwise, and hence cannot be termed as stigmatic and therefore the termination taking into consideration the said letter being punitive.  Though we are of the view that whilst carrying out the exercise of assessing the suitability of the Petitioner, use of the said words could have been avoided.  The question arises is whether the used of the said words in his report dated 15/02/2013 makes the order stigmatic and punitive in nature, the answer has to be in the negative.

27 It   is   required   to   be   borne   in   mind   that   the   learned   Principal District Judge of a particular district is the person on the spot, he has an opportunity to see the judicial officers who are working in the district .  Hence it is required to be presumed that the remarks which have been made by the the learned Principal District Judge are on the basis of the information which he   had   gathered   and   after   watching   the   conduct   and   performance   of   a particular judicial officer, though in the instant case the use of particular words as we have observed could have been avoided.   Hence mere use of the said words would not impinge upon the conclusion of the learned Principal District Judge that the Petitioner is not fit for continuation in judicial service.  In the instant case there is only a faint allegation that the learned Principal District Judge was biased against the Petitioner. The said allegation seems to have been made on hindsight in the context of the letters of the learned Principal District Judge.  In fact as mentioned earlier, the learned Principal District Judge on an earlier occasion has made fair comments in respect of the judgment writing, language and consideration of evidence in so far as the Petitioner is concerned. There can be no dispute about the fact that the report of the learned Principal District Judge is concerned, the said report is an input before the Probation Committee which takes a decision on an overall assessment of a candidate. The said report of the learned Principal District Judge as regards the suitability of the Petitioner in the instant case as indicated above was placed before the Probation Committee along with the other material which we have already referred to the earlier part of this judgment.

Now coming to the discreet enquiry, the same was only as regards the allegations made against the Petitioner as regards his punctuality.   The learned   Principal   District   Judge   was   entitled   to   conduct   the   said   discreet enquiry in view of the fact that the Petitioner was a probationer and the issue of   his   suitability   was   in   question.     The   said   discreet   enquiry   was   in   fact preceded by a surprise visit made by the learned Principal District Judge on 01/02/2012 to the Court of the Petitioner on which occasion the Petitioner was not found on dais till about 11.45 am and a message was thereafter received at 12.00 noon that the Petitioner would not be attending the Court as he was unwell.

In our view the discreet enquiry as regards punctuality is also a part of the exercise which is required to be carried out so as to see the conduct of  a  probationer  during   the  probationary   period,   the   principles  of  natural justice therefore cannot be said to be violated.

28 As indicated herein­above, the decision to discharge the Petitioner was that of the Probation Committee which was consisting of three Hon’ble Judges of this Court.  The entire file of the Petitioner was placed before the Probation Committee and therefore it would have to be presumed that the Probation Committee on the basis of the overall assessment based on the material on record has reached the  conclusion that the Petitioner was required to be discharged from service.  There can be no gain saying in the fact that the overall suitability of a probationer is to be considered and just because in respect of some aspect a probationer has fulfilled the parameters or has an explanation   to   offer,     his   termination   cannot   be   termed   as   stigmatic   and punitive, if on an overall assessment he is not found suitable. It is well settled that   apart   from   the   performance   the   conduct   of   a   judicial   officer   is   also relevant. In the backdrop of what has been stated herein­above it also cannot be said that the discharge of the Petitioner is arbitrary or capricious.

29 In so far as the judgments relied upon on behalf of the Petitioner are concerned, the facts involved in the said cases can be said to have common thread inasmuch as in all the cases either an explanation was called for or enquiry was conducted and a report was submitted against the probationer. The facts of the said cases were such that having regard to the allegations which were made against the probationers in each of the said cases and having regard to the fact that an enquiry report was on record, the discharge of the probationers in the said cases was found to be as and by way of punishment as being in violation of the principles of natural justice.  In fact in one of the cases i.e. Samsher Singh’s case, the Rules provided that the adverse material shall be placed before the probationer. It is in the facts of the said cases that the allegations of misconduct in the said cases were held not the motive but the foundation for discharge or termination of the probationer. Such is not the case in the instant matter, as in the instant case apart from the fact that there is no preliminary enquiry or vigilance enquiry into any misconduct in fact even no explanation was called for from the Petitioner and it is on the basis of the overall assessment of the material on record that the decision was arrived at by the Probation Committee to discharge the Petitioner from service.

30 At the cost of repetition it would have to be said that the Apex Court has in terms held that having regard to the allegation or suspicion of misconduct that the master/employer may have against the probationer, the employer may not choose to hold an enquiry to discharge the probationer whom the employer is not desirous of keeping. (See Gujarat Steel Tubes Ltd. v/s. Gujarat Steel Tubes Mazdoor Sabha).

It is also trite that the enquiry conducted to go into the suitability of a probationer cannot attract the provisions of Article 311 of the Constitution of India.   Hence even assuming that the tenor of the letters of the learned Principal   District   Judge   would   amount   to   casting   aspersions   or   suspicion against the Petitioner, the administration was entitled to take a decision to discharge the Petitioner without choosing to go into the allegations.  Since the Petitioner was not found to be  suitable  for  continuation  by the  Probation Committee, the contention of the learned counsel for the Petitioner founded on the basis of the letters of the learned Principal District Judge that the Petitioner is   found   to   be   undesirable   and   therefore   amounts   to   a   stigma   cannot   be accepted. We therefore conclude that the order passed against the Petitioner is a simple order of discharge, on being found not suitable for continuation, and is therefore not stigmatic.

31 For the view that we have taken no interference is called for with the impugned orders dated 18/11/2013 and 12/11/2013 as well as with the recommendations of the Probation Committee.   The above Writ Petition is accordingly dismissed. Rule discharged with parties to bear their respective costs.

[SARANG V. KOTWAL, J] [R.M.SAVANT, J]

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