SCA/16053/2007 1/19 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 16053 of 2007 For Approval and Signature: HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH Sd/- HONOURABLE MR.JUSTICE D.H.WAGHELA Sd/- ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? 1 to 5 NO ========================================= = HARISHKUMAR NARHARILAL VAIDYA - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================= = Appearance : MR JR NANAVATI with MR BHARAT JANI for Petitioner(s) : 1, MR DIPEN DESAI ASSTT GOVERNMENT PLEADER for Respondent(s) : 1, MR JB PARDIWALA for Respondent(s) : 2 - 3. MR SK PATEL for Respondent(s) : 4, MS ROOPAL R PATEL for Respondent(s) : 4, ========================================= = CORAM : HONOURABLE THE ACTING CHIEF JUSTICE MR. M.S.SHAH and HONOURABLE MR.JUSTICE D.H.WAGHELA SCA/16053/2007 2/19 JUDGMENT Date : 25/07/2008 CAV JUDGMENT (Per : HON'BLE ACTING CHIEF JUSTICE MR.M.S.SHAH) 1. The petitioner has, in effect, re-agitated the issue of termination of his service as a judicial officer after his first petition being withdrawn with a view to making a representation for reconsideration of the impugned order by the High Court and after such representation being rejected by the order dated 05.09.2006. 2. The petitioner was appointed on 24.7.1996 as an ad-hoc Judge of Labour Court for a period of one year by the State Government after interview before the selection committee. He continued to work as such till 16.10.1999 with a break of 13 days between 25.01.1998 to 06.02.1998, which break was regularized. When the Gujarat State Public Service Commission (GPSC) issued advertisement on 02.03.1998 to invite applications for the post of Judge, Labour Court, the petitioner responded to that and he was selected by the GPSC and appointed as Labour Judge in consultation with the High Court by notification dated 12.10.1999. Thereafter, he continued to serve at the places of his posting without any adverse remarks till his probation was terminated by notification dated 08.08.2002. He challenged that termination by the first petition, being SCA No.10564 of 2002, but he withdrew it on 08.12.2004 with a view to making a representation. 3. It is the case of the petitioner that his first petition was SCA/16053/2007 3/19 JUDGMENT duly admitted and, at the stage of final hearing, it was felt by the Division Bench that the facts and contentions canvassed by the petitioner could be placed before the High Court in the form of a representation by the petitioner and, therefore, he was permitted to withdraw the petition expressly recording the hope that the High Court would consider such representation on its own merits and take a decision thereon in accordance with law. It was submitted for the petitioner that the detailed representation dated 25.01.2005, annexed with several relevant documents, was, however, not decided till July, 2007 and, therefore, he had written a letter dated 14.07.2005 requesting to decide it as expeditiously as possible. Thereafter, the decision was taken and communicated to the petitioner vide letter dated 05.9.2006 which did not disclose any reasons as to why the contentions contained in the representation did not find favour with the High Court. 4. Besides reiterating the grounds and contentions contained in the previous petition and in the representation, learned counsel for the petitioner heavily relied upon judgment of this Court in Chhayaben Labhshanker Mehta v. State of Gujarat [2005 (1) GLH 787] in which another Judge of Labour Court, relieved by the same order was ordered to be reinstated with the direction to reconsider the question of her confirmation after the finding that the decision to terminate her service was arbitrary, discriminatory and without considering her overall service record. 5. By filing the affidavit of Deputy Registrar, High Court of Gujarat, it is submitted that, in view of judgment of the Apex Court SCA/16053/2007 4/19 JUDGMENT in case of State of Maharashtra v. Labour Laws Practitioners Association [1998 (2) GLR 1079], the service of presiding officers of Industrial Courts and Labour Courts constituted judicial service and, therefore, they were under the administrative control of the High Court since 25.10.1999. The GPSC had selected 21 candidates for being appointed as Judges of Labour Courts who were then appointed on probation for a period of two years vide notification dated 12.10.1999. Thus, the petitioner took charge on 21.10.1999 and his period of probation was completed on 20.10.2001. The question of appointment of such Judges on long term basis on their satisfactory completion or otherwise of the probation period was taken up for consideration by the High Court and the President of the Industrial Court, who is the head of the department of Industrial Courts and Labour Courts in the State, was requested to submit his special report in respect of all probationers, giving his considered opinion as regards merit and fitness of the probationers for their continuation on long term basis. The President, by letter dated 18.2.2002, submitted his special report in respect of all probationers, including the petitioner, with the opinion in respect of the petitioner, as under: "He is honest, polite. But his expression in correspondence is not so good and discussion and appreciation of evidence is not so good. No discussion of law in judgments and orders. His overall assessment is Average. Even though, I am of the opinion that he may be appointed on long term basis". 5.1 In the confidential report for the year 2001 in respect of the petitioner, remarks as under, were recorded: SCA/16053/2007 5/19 JUDGMENT "(II) Personal Characteristics: (4) Clarity of thought and Expression in correspondence Not so Good and discussion. (IV) Method of work: (e) Overall assessment of disposal. Poor (f) Disposal of heavy contested matters. Poor (V) Ability: As reflected from R&P in matters under Appeal/ Revision with special reference to (4) Discussion of law and facts in judgments/orders No discussion of law (5) Capacity to understand, discern and apply ratio of decisions of the Supreme No Court and High Court. (VI) Knowledge of Law: (2) Whether he has studious habits and keeps himself No abreast of the case law, statutory law and develop- ment of law in general. (VI) Method of writing judgments: (III) Discussion and appreciation of evidence. Not so good. (VII) (1) The reporting officers overall assessment and grading of the Judge reported upon i.e. whether he is outstanding Average" etc. 5.2 Thereafter, the file of petitioner was placed before the SCA/16053/2007 6/19 JUDGMENT Hon'ble the Chief Justice and the Hon'ble unit Judge (Hon'ble Mr.Justice B.J.Shethna), wherein it was opined by the Hon'ble unit Judge that: "As regards Mr.H.N.Vaidya, his clarity of thought is not so good, disposal is poor and no discussion of law at all. He has no capacity to understand the High Court and Supreme Court judgments. Appreciation of evidence also not so good and average. This officer cannot be appointed on long term basis, even if he is found to be honest and polite by the President, Industrial Court." 5.3 Thereafter, the matter was placed before the Standing Committee which decided that the matter may be placed before the Chamber Meeting with a recommendation to terminate his services. In the Chamber Meeting held on 29.6.2002, it was decided that the petitioner cannot be given appointment on long term basis in view of unsatisfactory performance during the period of probation. Thus, vide notification dated 08.08.2002, his service was terminated. 6. By filing an affidavit-in-rejoinder, the petitioner has submitted that the material in respect of disposal of cases by him were not taken into consideration and no opportunity was given to make submissions in that regard. Even the material placed for consideration along with the representation were not considered which necessitated the second petition. It is averred that the President of Industrial Court had communicated vide order dated 24.4.2001 that his confidential report was good in the year 2000. It was by another President of the Industrial Court, who was only SCA/16053/2007 7/19 JUDGMENT appointed from 07.12.2000 and who was only having his sitting at Ahmedabad, had written the remarks in the last uncommunicated confidential report. The petitioner had already put in legal practice solely on labour legislations for more than 14 years before being selected as a Labour Judge and, right from the beginning, he was given powers to conduct matters under the provisions of Industrial Disputes Act, 1947 where no appeals are provided. Some of the other Judges appointed along with him were not given such powers and their orders in the matters under other enactments could have been judged by the Industrial Court. None of the appeals against the petitioner's orders or judgments were heard by the President of the Industrial Court at Ahmedabad. The writ petitions and appeals filed from the awards and orders given by the petitioner were confirmed by the High Court or the appellate Court at Surat. It was, therefore, submitted that the aforesaid reports of the President of the Industrial Court, when the petitioner had never directly worked under him, were baseless. It is also contended that his confidential reports for the year 2001 ought to have been communicated and the High Court ought to have examined the overall record and performance of the petitioner rather than relying upon the confidential reports of the President who had absolutely no knowledge about his performance. It is submitted that the adverse remarks and report of the President were absolutely incorrect and language of the order of termination clearly attach stigma of "unsatisfactory service" after six years of his honest and diligent performance of duty without any complaints from any quarter. It is also submitted that, out of 21 Judges of the same batch, impugned order was made only against 5 Judges, while others were confirmed SCA/16053/2007 8/19 JUDGMENT in service and their confidential reports and the figures of disposal were required to be called for and compared with those of the petitioner. 7. Learned counsel Mr.J.B.Pardiwala, appearing for the respondent, submitted that it was not permissible for the petitioner to re-agitate the same issues with the same prayers after withdrawal of his earlier petition. It was also submitted that the impugned order dated 05.09.2006 rejecting the representation of the petitioner was not required to reveal any reasons, even as it was clearly stated that the representation was considered by the High Court on its administrative side in terms of the observations made and directions issued by the Court in SCA No.10564 of 2002. He further submitted that, in case of confirmation in service of a probationer, the employer was required to examine each case on its merits, that there cannot be any comparison between two cases and that the Court ought not to sit in appeal over the decision, particularly when a corporate decision is taken by a body consisting of constitutional functionaries. He relied upon another later decision dated 08.12.2004 of this Court in SCA No.10978 of 2002 (Ajay M.Shah v. State of Gujarat) wherein, in respect of another Labour Judge, the division bench had taken the view that when probationer had no right to hold the post, there was no question of providing any opportunity of being heard to him and, if the work during the period of probation was not found to be satisfactory, he could not be ordered to be continued on long term basis. It was also observed that there cannot be any comparison between the adverse remarks found against one or the other Judges of the same group SCA/16053/2007 9/19 JUDGMENT out of whom some were confirmed in service and some were relieved at the end of the period of probation. 8. Learned counsel Mr.Pardiwala also relied upon recent decision dated 01.08.2005 of the Division Bench of this Court (Coram: Hon'ble Mr.Justice G.S.Singhvi, as His Lordship then was, and Anant S.Dave, J.) in SCA No.2405 of 1998 and emphasized the following relevant observations: "In our view, while dealing with the cases involving adjudication of challenge to the termination of services of an employee who is on probation, the Court should keep in view the following principles: (1) A probationer does not have the right to hold the post during the period of probation. (2) The position of a probationer cannot be equated with that of an employee who has been substantively appointed on a post and has the right to hold that post. (3) When an appointment is made on probation, it pre- supposes that the conduct, performance, ability and the capacity of the employee concerned have to be watched and examined during the period of probation. He is to be confirmed after the expiry of the probation only when his service during the period of probation is found to be satisfactory and he is found to be suitable for the post. (4) An order terminating the services of a probationer can be questioned only if it is shown that the same has been passed arbitrarily or by way of punishment without complying with the rules of natural justice and the requirements of Article 311 of the Constitution, if applicable or it is shown that in the garb of termination of service by an innocuous order the employer has punished the probationer. (5) Since a probationer does not have the right to hold the post on which he has been appointed on probation, he cannot ordinarily claim a right to be heard before the termination of his service. SCA/16053/2007 10/19 JUDGMENT (6) For the purpose of forming an opinion on the suitability of a probationer to be continued in service, the employer can take into consideration the reports relating to his performance, conduct, behavior and such reports need not be conveyed to the employee concerned. The competent authority can also take into consideration other relevant factors for the purpose of determining the suitability and fitness of the probationer to be continued in service. (7) The decision on the question of suitability and fitness of a probationer can be taken during or at the end of the period of probation. (8) ..... ...... (9) .... ..... (10) .... .... It was further held: "In recording the aforementioned conclusions, we are conscious of the fact that while exercising jurisdiction under Article 226 of the Constitution, the High Court cannot sit in appeal over discretion exercised by the employer to extend or not to extend the period of probation of an employee or to discontinue the engagement of a probationer. Such decisions are largely based on the subjective satisfaction of the employer and judicial intervention is called for only if it is established that the decision making process was vitiated due to patent arbitrariness or mala fides or there has been a violation of the statutory provisions........" 9. In view of the above controversy, relevant record of the High Court in respect of confidential reports and disposal of cases by three Judges viz. the petitioner, Ms. C.L.Mehta and Shri N.N.Patni, were called for and examined. It was seen that the High Court, on its administrative side, had followed the same procedure of scrutiny in respect of SCA/16053/2007 11/19 JUDGMENT other Labour Judges, including Ms.C.L.Mehta and Shri N.N.Patni, about whom remarks in the special report of the President were as under: Labour Judge Opinion of President Industrial Court Opinion of Admn. Judge (Unit Judge of High Court) 1. N.N.Patni He is honest, polite and his disposal is not so good. His discussion of law in judgments and orders is also not in detail and his overall assessment is reasonably good. So, he may be appointed on long term basis. To be appointed on long term basis. Dt.24.4.2002 2. H.N.Vaidya (Petitioner) He is honest, polite. But his expression in correspondence is not so good and discussion and appreciation of evidence is not so good.. No discussion of law in judgments and orders. His overall assessment is Average. Even though, I am of the opinion that he may be appointed on long term basis. As regards Mr. H.N. Vaidya, his clarity of thought is not so good, disposal is poor and no discussion of law at all. He has no capacity to understand the High Court and Supreme Court judgments. Appreciation of evidence also not so good. 'Average'. This officer cannot be appointed on long term basis, even if he is found to be honest and polite by the President, Industrial Court. Dt. 24.4.2002 SCA/16053/2007 12/19 JUDGMENT Labour Judge Opinion of President Industrial Court Opinion of Admn. Judge (Unit Judge of High Court) 3. Ms.C.L.Mehta She is honest and polite. Her assessment of disposal is not so good. But her overall assessment is reasonably good. So, she may be appointed on long term basis She is 'inactive' and disposal is 'not so good'. She cannot be appointed on long term basis, even she is found to be honest and polite by the President, Industrial Court. Dt.24.4.2002 It would clearly appear from the above remarks that all the three Judges were reported to be honest and recommended for appointment on long term basis. 10. The disposal of the judges other than the petitioner were not reported to be "good". It was found from the record that overall disposal of the three Judges during the relevant period was as under: Disposal Sr. from 22.10.99 from 1.1.2000 from 01.1.2001 No. Name of Judge to 31.12.1999 to 31.12.2000 to 31.12.2001 1. Mr.N.N.Patni 03 230 199 2. Mr.H.N.Vaidya 27 519 783 (Petitioner) 3. Ms.C.L.Mehta 106 589 596 11. All the remarks in the annual confidential reports as on 31.12.1999 and 31.12.2000 against the name of the petitioner were SCA/16053/2007 13/19 JUDGMENT "good" and the overall assessment was: "good officer" in 1999 and "good" for the year 2000. As against that, the other two officers had earned overall remark of "reasonably good". In the ACR for the year 2000, the petitioner was shown to be "capable of taking initiative, tactful, industrious, diligent and polite, prompt". As for handling of old matters in order of seniority, the remark was that "a good number of old matters were taken and disposed by him" and assessment of disposal even of heavily contested matters was reported to be "good". In the columns for "Ability", "Knowledge of Law" and "Method of writing judgments", it was reported that his recording of evidence was "good", application of principles of Evidence Act was "good", discussion of law and facts in judgments/orders was "good but somewhat lengthy", capacity to understand and apply decisions of the Supreme Court and the High Courts was "good". He was reported to have studious habit of keeping himself abreast of the case law, statutory law and development of law in general and for discussion and appreciation of evidence, the remark was: "Narrates the fact of oral evidence in full details and then appreciates it." Overall marks in respect of the year 2000 was 61 in case of the petitioner, 58 in case of Ms.C.L.Mehta and 52 in respect of Mr.N.N.Patni. Thus, among the three, the petitioner scored highest marks in the year 2000. 12. According to the annual confidential report for the year 2001, most of the remarks were good and positive. The petitioner SCA/16053/2007 14/19 JUDGMENT was reported to be "poor" in the matter of overall assessment of disposal and disposal of heavily contested matters. As for discussion of law and facts in judgments/orders, the remark was "No discussion of law at all". Thus, in short, his overall ranking as also of the two other Judges was downgraded in the year 2001 even as all the three were recommended for confirmation. 13. At this stage, it is pertinent to refer to the following observations made by this Court in C.L.Mehta v. State of Gujarat [2005 (1) GLH 787: "28. We have carefully gone through the Annual Confidential Reports of the petitioner. Despite the said two adverse remarks against the petitioner, the report of the learned President, Industrial Court was in favour of appointing her on long term basis as her overall performance was rated as reasonably good. A bare look at the Confidential Reports of the petitioner, shows that except for the said two adverse remarks for the year 2001, the overall performance of the petitioner was good. We may note here from the material placed on record on behalf of the respondent no.2 that there were following adverse remarks against one Mr. N.N.Patni, Judge, Labour Court, Himmatnagar, which are as under: "(IV) Method of work: (e) Overall assessment of disposal : Not so good. (V) Ability: As reflected from R & P in matters under Appeal/Revision with special reference to : (4) Discussion of law and facts in judgments/orders : Not in detail. (VI) Knowledge of law: (2) Whether he has studious habits SCA/16053/2007 15/19 JUDGMENT and keeps himself abreast of the case law, statutory law and development of law in general : No. However, the said Mr. Patni has been confirmed; whereas the petitioner's services have been terminated. 28.1 We find that the respondent no.2 does not appear to have taken into consideration the overall record of the petitioner and the assessment appears to have been made in the context only of the report of the President, Industrial Court which did not mention the positive points of the candidate and also did not contain the Annual Confidential Reports of the previous years, and in fact recommended that she should be continued on long term basis. Thus, the decision of the High Court does not appear to have been taken on an overall assessment of the performance of the petitioner during the entire period of probation. 28.2 Despite the fact that the petitioner has raised a specific contention in the petition that her performance in the context of disposal of cases was at par with other Judges of the Labour Court who are confirmed and that other probationers appointed alongwith the petitioner who have been confirmed in the services by the same impugned Notification includes those petitioners to whom advisory memos or memos were issued as against the petitioner to whom no warning or memo or advisory memo was ever issued, nothing has been stated in reply thereto. 28.3 In the case of The Manager, Government Branch Press and Another V. D.B.Beliappa reported in (1979) SCA/16053/2007 16/19 JUDGMENT 1 SCC 477, the Supreme Court has held that there is always some reason or cause for terminating the services of a temporary employee. It was held that it is not necessary to state that reason in the order of termination communicated to the employee concerned. But where there is a specific charge of arbitrary discrimination, or some hostile motive is imputed to the authority terminating the service, it is incumbent on the authority making the impugned order to explain by disclosing the reason for the impugned action. It was observed that it is true that the competent authority has a discretion under the conditions of service governing the employee concerned to terminate the latter's employment without notice. But such decision has to be exercised in accordance with reason and fair play and not capriciously. Bereft of rationality and fairness, discretion degenerates into arbitrariness which is the very antithesis of the rule of law on which our democratic policy is founded. Arbitrary invocation or enforcement of a service condition terminating the service of a temporary employee may itself constitute denial of equal protection and offend the equality clause in Articles 14 and 16 (1). 28.4 In the instant case, no special circumstance or reason has been disclosed which would justify discriminatory treatment to the petitioner as a class separate from that of the other probationers who had been confirmed. When the probationers are taken for confirmation or termination, different yardsticks SCA/16053/2007 17/19 JUDGMENT cannot be applied. Norms on which the decision