IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 355/1997 Reserved on:18.7.2008 Decided on:30.9. 2008 Veerta Verma. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioner : Mr. Ajay Sharma, Advocate. For the Respondents : Mr. Rajinder Dogra, Additional Advocate General for respondent No.1. Mr. K.D. Sood, Advocate for respondent No.2. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that in sequel to the recommendations made by the Himachal Public Service Commission, the petitioner was appointed to the Himachal Pradesh Judicial Service purely on temporary basis vide notification dated 26.7.1995. She was posted as Sub Judge-cum-Judicial Magistrate (1), Mandi pursuant to notification dated 28th July, 1995. She was discharged vide notification dated 20th September, 1997 on the ground that she has 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 not completed her probation period satisfactorily. The petitioner has assailed this order dated 20th September, 1997. The primary ground for assailing the order dated 20th September, 1997 in the writ petition is that though order dated 20th September, 1997 is innocuous but if the veil is lifted it becomes clear that the order casts a stigma and is punitive in nature founded on misconduct. It has also been contended in the petition that she has not been treated in a just and fair manner vis-à-vis one Dr. Baldev Singh. The stand of the employer is that order dated 20th September, 1997, is discharge simpliciter and need not be interfered with by this Court. It is admitted in the reply by respondent No.2 that in the case of Dr. Baldev Singh, the period of probation was extended by another one year with effect from 6.8.1997. It has been averred in the reply that Hon’ble the Chief Justice after considering the explanation of the petitioner dated 14th May, 1997 to the memo dated 6th May, 1997 had administered strict warning to her. There is mentioning of registration of FIR No. 165/95 dated 27.7.1995 under sections 406, 417,465, 467,468, 471, 420 and 120-B of the Indian Penal Code against the petitioner and her prosecution was also sanctioned. Mr. Ajay Sharma learned counsel appearing on behalf of the petitioner has strenuously argued that order dated 20.9.1997 (Annexure P-3) is violative of Article 14 of the Constitution of India. He also contended that the order dated 20.9.1997 is primarily based on the registration of the FIR against his client bearing FIR No. 165/95 and the sanction accorded to prosecute her. He further contended that his client has been discriminated vis-à-vis Dr. Baldev Singh. His further submission was that there was a serious allegation levelled against Dr. Baldev Singh which has led to a discreet inquiry conducted by a Judicial Officer on the basis of which his explanation was sought for but without taking any final 3 decision on the report, his probation period was extended on 5th September, 1997. His further contention is that order dated 20th September, 1997 casts stigma if the veil is lifted and the record is perused by this Court. Mr. K.D. Sood, Advocate appearing on behalf of respondent No.2 has supported the notification dated 20th September, 1997. His contention is that it was for the employer to decide whether the petitioner had completed the probation period satisfactorily or not. He also contended that the notification dated 20th September, 1997 is discharge simpliciter and the petitioner has not substantiated her plea that the same is the outcome of any misconduct. He has strenuously relied upon the warning administered to the petitioner vide Annexure R-2/2 dated 9th June, 1997. He also contended that it was highly improper if a Judicial Officer continued on the post when FIR had already been registered against her and prosecution was sanctioned against her. The respondents have produced the entire record for the perusal of the Court. I have heard the learned counsel for the parties and perused the entire record carefully. It will be apt at this stage to have a bird’s eye view of the service record of the petitioner while serving as Judicial Officer. She was appointed vide notification dated 26th July, 1995. She was posted as Sub Judge-cum-Judicial Magistrate vide notification dated 28th July, 1995. I have gone through the confidential report of the petitioner for the year 1995-96. The net result of the ACR in the confidential report is ‘very good’. In the confidential report for the period with effect from 27.1.1996 to 31.3.1997, the net result is ‘good’. In case of Dr. Baldev Singh for the period from 11th August, 1995 to 16th January, 1996, the net result is ‘good’. For the period from 16.1.1996 to 31.3.1996, the net result is 4 ‘good’. For the period 1.4.1996 to 31.3.1997, net result was ‘good’. For the period 1997-98 with effect from 9.6.1997, the net result was ‘good. This is how the Annual Confidential Report of the petitioner vis-à-vis Dr. Baldev Singh read. It will be pertinent to take note of Annexure R-2/2 heavily relied upon by Mr. K.D. Sood to substantiate his plea that the petitioner had been administered serious warning and this was one of the factors which has gone against her resulting in her non-confirmation. The text of letter dated June 9th, 1997 reads thus: “Reference your explanation vide registered letter No. SJ/SDJM/Con/Suptd/97-479/97 dated 14/15.5.1997, in reply to Registry Memo No. HHC/CJ/Secy/8-4/84-2582 dated 6.5.1997. On consideration of your explanation, the following lapses are attributed to you:- i) Though accepting your plea that the Steno has erroneously typed the date of the zimini order as “2.1.1997” instead of “3.1.1997”, you have failed to check the date while signing the said zimini order. ii) Your explanation that you did not know whether the Secretary, Gram Panchayat is a Govt. servant has been found unsatisfactory. iii) You have ordered issue of non-bailable warrant simply on the basis of office report, which resulted in causing harassment, rather insult to a witness. You were supposed to have checked the report especially when non-bailable warrant was likely to be issued. Therefore, the Hon’ble the Chief Justice has been pleased to order issue of “strict warning” to you, which is hereby conveyed.” It appears from the record that an anonymous complaint was received by Hon’ble the Chief Justice against the petitioner that a criminal case has been registered by the Hamirpur Police. The matter was placed before the Full Court in its meeting held on 5th July, 1996. The decision taken by the Full Court on 5.7.2000 reads thus: 5 “Considered. Resolved that the Superintendent of Police, Hamirpur be asked to expedite the investigation and intimate the High Court the result of investigation. Keeping in view the seriousness of allegations against the judicial Officer (Ms. Veerta Verma), her case for confirmation will not be put up by the Registrar till the investigation is complete and report of the Supdt. Of Police is received.” Thereafter the matter was again placed before the Full Court. The Full Court accorded the necessary sanction for the prosecution of the petitioner on the basis of the FIR No. 165/95 registered at Police Station, Hamirpur. The petitioner faced the trial and she was acquitted by the learned Chief Judicial Magistrate, Hamirpur on 30th June, 2000. The State preferred an appeal against the judgment dated 30th June, 2000 by way of Criminal Appeal No. 199/2001. The appeal preferred by the State was partly allowed. This Court upheld the acquittal of the petitioner and Sh. Anil Kumar vide judgment dated 14th November, 2007. This fact was brought to the notice of the Court by Mr. Ajay Sharma. Now, the Court will advert to the conduct of Dr. Baldev Singh. It appears from the record that a complaint dated 5th July, 1997 was received by Hon’ble the Chief Justice against Dr. Baldev Singh. A discreet inquiry was conducted by Sh. Shamsher Singh, Additional District and Sessions Judge against Dr. Baldev Singh. The inquiry was placed before the Full Court. It was decided by the Full Court that the copy of the complaint dated 5th July, 1997 be sent to Dr. Baldev Singh and his explanation be called for with respect to the allegations made against him. Thereafter the learned Registrar Mr. M.R. Verma prepared an agenda for confirmation of Sh. Rakesh Kainthla, petitioner Veerta Verma and Dr. Baldev Singh. The agenda i.e. item No.1 reads thus: 6 “Item No.1. Consideration of the matter regarding confirmation/extension of period of probation in respect of the officers of Himachal Pradesh Judicial Service appointed to the Service in August, 1995. It may be submitted that Ms. Veerta Verma and S/Shri Rakesh Kainthla, Baldev Singh, Yashwant Singh and Rakesh Kumar Chaudhary were appointed to the Himachal Pradesh Judicial Service in August, 1995, on two year’s probation. Rule 2, 3 and 4 of section “C, Part-III of H.P. Judicial Service Rules, 1973 deal with the period of probation, confirmation and departmental examination of the offices of the Himachal Pradesh Judicial Service. Rule 2 supra reads as follows: 2. Period of probation. (a) Every person appointed to the service shall be on probation for a period of two years. (b) The High Court may extend the period of probation for a maximum period of two years for reasons to be recorded in writing. (c) A person on probation shall be liable to be discharged from service without assigning any reason, provided that if he holds a lien or any permanent post under the State Government or any other office office/establishment under any Government/High Court, he shall be liable to be reverted to that post. (d) A person on probation who holds a lien on any permanent post under the State Government or any other office/establishment under any Government/High Court may if he so desires during the period of probation have the option to revert back to his parent Department/office/establishment, as the case may be after giving such notice as may be prescribed by the Government in consultation with the High Court. 7 Rule 3 supra reads as under:- 3. Confirmation in service. “A person who has been declared to have satisfactorily completed his period of probation and who has passed the Departmental Examination as prescribed in sub-Rule 4 below may be confirmed in the service.” Relevant part of Rule 4 supra reads as follows: 4. Departmental Examination. (i) Every person appointed to the Service after the commencement of these rules shall pass the departmental examination by the prescribed standard within two years from the date of his appointment and if any candidate fails to pass the departmental examination, he may be removed/reverted from the service. The departmental examination shall be conducted by the High Court in accordance with rules and procedure to be framed in this behalf by the High Court. Provided that the High Court may, for good and sufficient reasons, exempt any candidate/person from passing the whole or any portion of the Departmental Examination or may extend the period within which the period shall so pass the examination. (ii) .. .. .. “ The exact dates of appointment and expiry of probation period of two years of the aforesaid officers are as follows: Sr. No. Name of Officer Date of appointment to the H.P. Judl. Service. Date of completion of probation period. 1. Sh. Rakesh Kainthla 7.8.1995 6.8.1997 2. Ms. Veerta Verma 9.8.1995 8.8.1997 3. Dr. Baldev Singh 7.8.1995 6.8.1997 4. Sh. Yashwant Singh 8.8.1995 7.8.1997 5. Sh. Rakesh Kumar Chaudhary. 3.8.1995 2.8.1997 It may be submitted that except Sh. R.K.Chaudhary, all the aforesaid officers have passed the departmental examination. Therefore, the case of 8 Mr. Rakesh Kumar Chaudhary has to be considered in view of the provisions of Rule 4 supra as well amongst other relevant factors. Ms. Veerta Verma is an accused in case F.I.R. No. 165/65 dated 27.7.1995 under Sections 406, 417, 465, 467, 468, 471, 420, 120-B read with Section 34 of the Indian Penal Code Police Station Hamirpur and the Hon’ble Court has accorded sanction for her prosecution vide order dated July 5, 1997. There are allegations of gross mis-use of official powers against Dr. Baldev Singh and the inquiry in the matter is pending as per information collected from the Vigilance Cell. Since the cases of the aforesaid officers, in view of the completion of probation period are to be considered for confirmation or extension of their period of probation etc., therefore the matter was placed before the Hon’ble the Chief Justice and His Lordship was pleased to direct that the matter be placed before the Full Court. The ACR-dossiers of the concerned officers and other relevant records which may be required for the consideration of the matter by the Hon’ble Full Court will be placed before it at the time of consideration of the matter. Pursuant to the orders of Hon’ble the Chief Justice, the matter is placed before the Hon’ble Full Court for consideration and orders, please.” It is evident from the agenda that two aspects have been highlighted therein firstly the FIR has been registered against the petitioner and the sanction for her prosecution was accorded on 5.7.1997. As far as Dr. Baldev Singh was concerned, it was stated that the inquiry in the matter was pending against him as per the information received from the Vigilance Cell. The matter thereafter was placed before the Full Court to take a decision whether the probation of the petitioner and Dr. Baldev 9 Singh was to be extended or not. The matter came up before the Hon’ble Court on 29.8.1997. The following decision was taken by the Full Court, which reads thus: “Item No.1. Consideration of the matter regarding confirmation/extension of period of probation in respect of the officers of Himachal Pradesh Judicial Service appointed to be Service in August, 1995. Having assessed the performance and conduct of Dr. Baldev Singh, it was resolved to extend the period of his probation for a period of one year on and with effect from 6.8.1997. Having assessed the performance and conduct of Ms. Veerta Verma, it was resolved that she cannot be said to have passed her probationary period satisfactorily and therefore, it is resolved that she be discharged from Service and the Governor be informed to issue notification discharging her from the Service..” A copy of the complaint dated July 5, 1997 be sent to Dr. Baldev Singh and his explanation be called for with respect to the allegations against him in the aforesaid complaint Annexure-A. The explanation shall reach the Registry of this Court within a period of two weeks from the date of receipt of the communication.” Thus as far as the petitioner is concerned, the reasons were recorded by the High Court that since the petitioner has not completed the period of probation satisfactorily, she be discharged. However, as far as Dr. Baldev Singh is concerned, his probation period was extended. This decision is dated 29.8.1997. In sequel to the decision of the Full Court vide letter dated 5th September, 1997, the probation period of Dr. Baldev Singh was extended with effect from 6th August 1997. Now, the relevant question is whether the probation period of Dr. Baldev Singh could be extended if the inquiry was pending against him. The notification for 10 extension of his probation period was issued on 5th September, 1997. However, his explanation was considered by the Full Court in its meeting held on 30th September, 1997, as per item No.1 (supplementary agenda), which reads thus: “Item No.1 (Supplementary agenda) Consideration of discreet inquiry report submitted by Shri Shamsher Singh, Additional District and Sessions Judge against Dr. Baldev Singh, Sub Judge-cum-JMIC, Shimla (earlier posted as Sub Judge-cum-JMIC, Anni). Explanation of Mr. Baldev Singh, Sub Judge-cum- Judicial Magistrate (2) Shimla considered. We expect that in future he will conduct himself in a dignified manner in his capacity as a Judicial Officer.” The learned Registrar has taken a serious note of misconduct of Dr. Baldev Singh. The matter was looked into by the Judicial Officer and the discreet inquiry was furnished to this Court. The comments of Dr. Baldev Singh were called for. He was warned by the Full Court on 30th September, 1997, however, his probation period was extended on 5th September, 1997. There is considerable force in the submission of Mr. Ajay Sharma that his client has not been dealt with in a just and fair manner. I have already taken note of the Annual Confidential Reports of Dr. Baldev Singh and of the petitioner. The petitioner has earned ‘very good’ entry in the Confidential Report 1995-96, however, in her Confidential Report which she earned only ‘good’ is for the period 1996- 97. As far as Dr. Baldev Singh is concerned, it is evident that he has only earned ‘good’ in all the Annual Confidential Reports for the relevant period. The only distinguishable features of the case of Dr. Baldev Singh vis-à-vis the petitioner are that as far as the petitioner is concerned she had been warned by Hon’ble the Chief Justice vide communication dated 9th June, 1997 and FIR bearing No. 165/95 was registered against her. 11 This Court took cognizance of FIR No. 165/95 and the matter was directed to be investigated by the Superintendent of Police, Hamirpur expeditiously. The permission to prosecute her was accorded as discussed hereinabove. She was acquitted by the learned trial court and this decision has been upheld by a Division Bench of this Court. In case of Dr. Baldev Singh, an inquiry was instituted against his misconduct. The Inquiry Officer has submitted the report to this Court. His explanation was called for and he was warned on 30th September, 1997. The Full Court has not taken into consideration that the inquiry was pending against Dr. Baldev Singh when his probation was extended with effect from 6.8.1997 and in the case of the petitioner it was found that she has not completed her probation satisfactorily and the recommendations were made for her discharge from the Himachal Pradesh Judicial Service. Rule 2 of the Himachal Pradesh Judicial Service Rules, 1973 deals with the period of probation, which reads thus: “2. Period of probation. (e) Every person appointed to the service shall be on probation for a period of two years. (f) The High Court may extend the period of probation for a maximum period of two years for reasons to be recorded in writing. (g) A person on probation shall be liable to be discharged from service without assigning any reason, provided that if he holds a lien or any permanent post under the State Government or any other office office/establishment under any Government/High Court, he shall be liable to be reverted to that post. (h) A person on probation who holds a lien on any permanent post under the State Government or any other office/establishment under any Government/High Court may if he so desires during the period of probation have the option to 12 revert back to his parent Department/office/ establishment, as the case may be after giving such notice as may be prescribed by the Government in consultation with the High Court.” The maximum period for probation is two years, however, the same could be extended for a maximum period of two years for reasons to be recorded in writing. The petitioner was appointed undoubtedly on probation for a period of two years, Dr. Baldev Singh was also appointed on probation for two years. It was necessary as per sub-rule (b) or Rule 2 that the period of probation could be extended for a maximum period of two years for the reasons to be recorded in writing. I have not come across the record whereby reasons were recorded for extending the probation period of Dr. Baldev Singh. The most important question now is whether the impugned notification dated 20.9.1997 is founded on any alleged misconduct of the petitioner or not. The plain reading of notification dated 20th September, 1997 reflects it to be an order of discharge simpliciter. However, if the veil is lifted as permissible by Hon’ble the Supreme Court, it appears from the record that the foundation for issuance of notification dated 20th September, 1997 is the registration of FIR against the petitioner bearing No. 165/95 and Annexure R-2/2 dated June 9, 1997 whereby, the petitioner has been issued strict warning. The other vital aspect is whether the petitioner could be discharged on the basis of the registration of FIR against her. The registration of FIR is only for the purpose of setting the criminal machinery in motion. Mere registration of FIR against any person will not constitute any misconduct. It will constitute misconduct if a person is convicted by a criminal court. It appears from the record that the registration of FIR against the petitioner has heavily weighed for not extending her probation period and resulting 13 in her discharge vide notification dated 20th September, 1997. The employer should have waited for the outcome of the criminal trial on the basis of FIR No. 165/95. She has been acquitted as noticed above by the trial court and this submission has been upheld by a Division Bench of this Court. There was no adverse material against the petitioner except the registration of FIR No. 65/95 and Annexure R-2/2. She has earned ‘very good’ entry in the Annual Confidential Report 1995-96 and has earned ‘good’ entry in the subsequent period for 1996-97. She was surely better placed vis-à-vis Dr. Baldev Singh in whose case the period of probation was extended with effect from 6.8.1997. It can be safely presumed by this Court on the basis of the above discussion that notification dated 20th September, 1997 casts stigma and is punitive in nature and the inquiry was required to be conducted against the petitioner. There is violation of the principles of natural justice. She has not been afforded any opportunity of being heard before the issuance of the impugned order. She has not been treated fairly by the employer. It appears that the employer has adopted different yardstick for dealing with similarly situate persons. So far as the petitioner is concerned, the decision is harsh and oppressive and as far as Dr. Baldev Singh is concerned, he has been dealt with a lenient manner. Comparison of the case of Dr. Baldev Singh has only been made to compare her case to see whether there is violation of Article 14 of the Constitution of India as argued by Mr. Ajay Sharma or not. It is made clear that the observation made hereinabove qua Dr. Baldev Singh will have no bearing on his service record since he has already been confirmed. These observations were necessary to see the veracity of the submissions of Mr. Ajay Sharma on the basis of the specific pleadings made in the petition. 14 The petitioner’s explanation was called for on 14/15th May, 1997. She has furnished reply on 6th May, 1997. The important aspect in her explanation was that the Steno has typed erroneously the date of the zimini order as “2.1.1997” instead of 3.1.1997”. True it is that the Judicial Officers have to be careful while signing the zimini orders, however, it cannot be viewed as a serious lapse that the petitioner has not been permitted to complete her probation period. The other issues whether the petitioner was not aware that the Secretary, Gram Panchayat is a Government servant or not was also not such a serious matter which could entail her non-confirmation. The petitioner has issued bailable warrant on the basis of office report. She was supposed to be more careful while issuing non-bailable warrants. However, the fact of the matter is that the petitioner had issued non-bailable warrants as per the office report. It is evident from the decision of the Full Court dated 5th July, 1997 that a conscious decision had been taken whereby the Registrar was directed not to put up the case of the petitioner for confirmation in view of