ABHAY JAIN versus THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AND ANR
[2022] 16 S.C.R. 693, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Body
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[2022] 16 S.C.R. 693
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ABHAY JAIN
v.
THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AND
ANR.
(Civil Appeal No. 2029 of 2022)
MARCH 15, 2022
[UDAY UMESH LALIT AND VINEET SARAN, JJ.]
Judicial Service – Rajasthan Judicial Service Rules, 2010 –
rr.45 and 46 – Entitlement to protection u/Art.311 of the Constitution
– Bail order dated 27.04.2015 passed by Appellant-judicial officer
in favour an accused in a case under Prevention of Corruption Act
became genesis of action taken against him – Departmental enquiry
instituted against him u/r.16 of Rajasthan Civil Services
(Classification, Control and Appeal) Rules, 1958 for acts amounting
to misconduct and violation of rr.3 and 4 of the Rajasthan Civil
Services (Conduct Rules), 1971 – Allegation leveled that appellant
passed the bail order with ulterior or oblique motives and for
extraneous considerations – Appellant submitted preliminary
objections to the allegations, which came to be rejected by the
Enquiry Judge – Meanwhile, Higher Judicial Committee, constituted
for deciding confirmation and discharge of Judicial Officers, upon
inspection of appellant’s records, decided not to recommend the
appellant for confirmation – Subsequently, a Full Court meeting
was convened wherein, based on recommendation submitted by the
Higher Judicial Committee, it was decided to discharge the appellant
– Appellant was thus discharged despite pendency of enquiry
proceedings against him – Discharge order was passed against the
appellant on ground that the Full Court found the appellant’s
services to be unsatisfactory during probation – Subsequently,
enquiry as well as disciplinary proceedings initiated against the
appellant were closed – Writ petition filed by appellant dismissed
by High Court – On appeal, held: There was no material to showcase
unsatisfactory performance of appellant in terms of requirement u/
rr.45 and 46 of the RJS Rules, 2010 – Moreover, appellant’s
discharge was not simpliciter, as claimed by the respondent – Non-
communication of ACRs to the appellant was proved to be arbitrary
and since respondent choose to hold enquiry into appellant’s alleged
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[2022] 16 S.C.R.
misconduct, the termination of his service was by way of punishment
because it put a stigma on his competence and thus affected his
future career – In such a case, the appellant would be entitled to
protection of Art.311(2) of the Constitution – Moreover, adverse
comments in ACR for the year 2015 could not have been the basis
on which appellant was discharged from service – Appellant was
never granted opportunity to improve and there was no intimation
to him about his performance being unsatisfactory – Importantly,
no verifiable complaint was filed against the appellant that could
form the basis of disciplinary proceedings against him – Appellant
was competent to pass the bail order dated 27.04.2015 and
Respondent was not able to prove presence of any extraneous
consideration or ulterior motive on the part of the appellant – Also
neither the bail order dated 27.04.2015 was ever challenged by the
State before any Court of law, nor was any complaint received
against the appellant regarding the said bail order – This is not the
case where there were strong grounds to suspect the appellant’s
bona fides – Even if appellant’s act was considered to be negligent,
it cannot be treated as “misconduct” – The discharge order is
accordingly quashed – Keeping in view that the appellant had not
worked as judicial officer after he was discharged, he be reinstated
with all consequential benefits including continuity of service and
seniority, but with only 50% backwages – Constitution of India,
1950 – Art. 311.
Service Law – Judicial Service – Every judicial officer is likely
to commit mistake of some kind or the other in passing orders in the
initial stage of his service, which a mature judicial officer would
not do – However, if the orders are passed without there being any
corrupt motive, the same should be over-looked by the High Court
and proper guidance should be provided to him.
Service Law – Judicial Service – Merely because a wrong
order has been passed by the appellant-judicial officer or the action
taken by him could have been different, this does not warrant
initiation of disciplinary proceedings against the judicial officer.
Service Law – Judicial service – Negligence vis-a-vis
misconduct – On facts, appellant-judicial officer, while passing the
bail order, may have been guilty of negligence in the sense that he
did not carefully go through the case file and did not take notice of
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the order of the High Court which was on his file – This negligence
cannot be treated to be misconduct.
Service Law – Misconduct – Mere suspicion cannot constitute
“misconduct” – Any ‘probability’ of misconduct needs to be
supported with oral or documentary material.
Service Law – Judicial service – Relief-oriented judicial
approaches cannot by themselves be grounds to cast aspersions on
the honesty and integrity of an officer.
Allowing the appeal, the Court
HELD: 1. The submission of the respondent that the
discharge of the appellant was a discharge simpliciter and not
violative of Article 311(2) of the Constitution of India is not worthy
of acceptance. The High Court erred in holding that the discharge
order of the appellant was a simpliciter order and not punitive in
nature. In spite of observing that the order of discharge had been
passed on account of inquiry initiated against the appellant, the
High Court failed to provide any reasoning as to how the
allegation of misconduct pertaining to the bail order was not the
foundation of the order of discharge. [Para 41][719-E-F]
2. The material placed before the Higher Judicial
Committee [consisting of five Judges and constituted for deciding
the confirmation and discharge of Judicial Officers] which
recommended the discharge of the appellant, clearly shows that
no adverse remarks were made against the appellant except in
relation to the grant of bail on 27.04.2015. [Para 43][719-H]
3. To argue that the
comments and observations in the 2015
ACR of the appellant were the basis on which he was discharged,
is misplaced and erroneous. Firstly, a bare perusal of the ACR
reveals that the top of this ACR itself carried a comment that
read “Discharged from Service”. Secondly, the Higher Judicial
Committee had, even prior to the submission of the 2015 ACR,
already recommended the discharge of the appellant. Notably,
the ACR for the year 2015 was filled and submitted by the
appellant on 20.01.2016, while the Higher Judicial Committee
had already recommended the discharge of the appellant on
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
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24.11.2015 itself and the impugned order of discharge was passed
on 27.01.2016, admittedly, in pursuance of a Full Court meeting
on 20.01.2016. Additionally, although the respondent had
submitted that the Integrity Certificate of the Appellant was
withheld by the Inspecting Judge, he failed to highlight that the
reason for the certificate being withheld was that the appellant
had been served with a chargesheet and not because of the
appellant’s service record. [Para 46][720-G-H; 721-A-C]
4. Moreover, the ACRs were not communicated to the
appellant within reasonable time. The non-communication of the
ACRs to the appellant in the present case is arbitrary and such
arbitrariness violated Article 14 of the Constitution of India. [Para
47][721-C, G-H]
5. Since the Government had, on enquiry, come to the
conclusion, rightly or wrongly, that the appellant was unsuitable
for the post he held on probation, this was clearly by way of
punishment and, hence, the appellant would be entitled to the
protection of Article 311(2) of the Constitution. Moreover, in the
facts and circumstances of the present case, the substance of the
termination order reveals that the discharge was by way of
punishment. Hence, the question that whether the action of non-
confirmation of the appellant is in accordance with Rules 45 and
46 of the RJS Rules is answered in the Negative. There was no
material on record to showcase unsatisfactory performance
of
the appellant in terms of requirement under Rule 45 and 46 of
the Rajasthan Judicial Services Rules, 2010. [Paras 50 & 51][726-
C-D, G]
6. The appellant was never granted an opportunity to
improve and there was no intimation to him about his performance
being unsatisfactory. This requirement of affording an opportunity
of improvement has been stressed upon by the Supreme Court
on multiple occasions and has also been envisaged under Rule
46(1) of the RJS Rules, 2010. [Para 53][727-B-C]
7. Every judicial officer is likely to commit mistake of some
kind or the other in passing orders in the initial stage of his
service, which a mature judicial officer would not do. However, if
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the orders are passed without there being any corrupt motive,
the same should be over-looked by the High Court and proper
guidance should be provided to him. In the present case,
admittedly there was no intimation to appellant about his
performance being unsatisfactory and hence he was deprived of
his opportunity to improve as a judicial officer. [Para 54][728-H;
729-A-B]
8. The three complaints filed against the appellant were
never communicated to the petitioner during his service tenure
and had been subsequently closed. The record clearly showcases
that no verifiable complaint was filed against the appellant that
could form the basis of the disciplinary proceeding against him.
[Para 55][729-B-C]
9. With respect to the grant of bail order dated 27.04.2015,
the record reveals that when the bail application of the accused
K.K. Jalia was listed before the Court of the appellant, no reply
was filed by the State and the prosecution, despite being given
the opportunity to file their reply, neither argued nor brought on
record the fact about the bail of the accused being denied by the
High Court. Additionally, it is evident from the record that the
Investigating Officer produced two letters dated 24.04.2015 and
27.04.2015 by the competent authority that clearly stated that
the file was submitted to the State Government for decision
regarding sanction. No time was specified regarding when the
decision was likely to be taken. Letter dated 27.04.2015 filed by
the
Investigating Officer clearly stated that the meeting was held
with competent authority on 23.03.2015 and that the file was sent
to the State Government for their decision. Therefore, it is evident
that the competent authority could not decide the matter and had
sent it to the State Government with no timeline in sight.
Moreover, the counsel of the accused informed the appellant that
the co-accused Alimuddin and Irfan had already been granted
bail by the High Court and this was a relevant consideration to
appellant’s mind. The fact of Alimuddin being granted bail was
even more relevant for the appellant because he was aware of
Alimuddin’s role in the case and also the fact that despite
prosecution sanction having been granted against Alimuddin, he
was granted bail by the High Court. [Para 56][730-A-E]
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
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10. The appellant could not be said to be at fault in granting
bail to K.K. Jalia since the bail order dated 27.04.2015 was based
on the non-grant of prosecution sanction and no progress in
relation to the same being brought on record. The appellant even
recorded that the State should act swiftly in relation to the grant
of prosecution sanctions in such matters. Also, it is settled law
that the appellant, under section 439 CrPC, could have granted
bail to the accused even subsequent to the rejection of the bail
by the High Court. [Para 57][730-E-F]
11. In essence, the appellant honestly admitted in his
comment that he had come across the reference of the dismissal
of the first bail application whilst dictating the bail order but
exercised his discretion in granting bail to the accused given the
uncertainty and delay in prosecution sanction and the intervening
grant of bail to the two other co-accused by the High Court, even
when the prosecution sanction had been granted for one of the
co-accused. [Para 59][731-F]
12. Importantly, the order of grant of bail dated 27.04.2015
was never challenged by the State before the High Court.
Moreover, no complaint was ever filed against the appellant with
respect to the grant of bail. [Para 61][733-A-B]
13. Charges filed against the appellant are vague in nature
and absolutely no details have been provided regarding the
allegation of passing the bail order for extraneous
considerations/
ulterior motive. In this context, there is no detail provided as to
what was the said extraneous consideration or ulterior motive,
but merely an inference has been drawn on the basis of suspicion.
Further, the record reveals that no complaint or other material
exists which could form the basis of the said allegations. [Para
62][733-B-C]
14. The accused K.K. Jalia had the right to file bail
application at any stage when undergoing imprisonment as an
under-trial prisoner. The fact that the two other co-accused had
already been enlarged on bail was a valid reason for granting bail
to accused K.K. Jalia. If the High Court was to initiate disciplinary
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proceedings based on a judicial order, there should have been
strong grounds to suspect appellant’s bona fides and the order
itself should have been actuated by malice, bias or illegality. This
is clearly not the case in the present matter. The appellant was
competent and well within his right to grant bail to the accused in
discharge of his judicial functions. [Para 64][735-F-H]
15. Merely because a wrong order has been passed by the
appellant or the action taken by him could have been different,
this does not warrant initiation of disciplinary proceedings against
the judicial officer. [Para 66][736-G]
16. The appellant may have been guilty of negligence in
the sense that he did not carefully go through the case file and
did not take notice of the order of the High Court which was on
his file. This negligence cannot be treated to be misconduct.
Moreover, the enquiry officer virtually sat as a court of appeal
picking holes in the order granting bail, even when he could not
find any extraneous reason for the grant of the bail order. The
present case revolves only around a single bail order, and that
too was passed with competent jurisdiction. Mere suspicion cannot
constitute “misconduct”. Any ‘probability’ of misconduct needs
to be supported with oral or documentary material, and this
requirement has not been fulfilled in the present case. There
was no allegation of illegal gratification against the present
appellant. Relief-oriented judicial approaches
cannot by
themselves be grounds to cast aspersions on the honesty and
integrity of an officer. [Para 69][740-G-H; 741-A-C]
17. There was no material to showcase unsatisfactory
performance of the appellant in terms of requirement under Rule
45 and 46 of the RJS Rules, 2010. Moreover, the appellant’s
discharge was not simpliciter, as claimed by the respondent. The
non-communication of the ACRs to the appellant has been proved
to be arbitrary and since the respondent choose to hold an enquiry
into appellant’s alleged misconduct, the termination of his service
is by way of punishment because it puts a stigma on his
competence and thus affects his future career. In such a case,
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
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the appellant would be entitled to the protection of Article 311(2)
of the Constitution. Moreover, the adverse comments in the ACR
for the year 2015 could not have been the basis on which the
appellant was discharged from service. The appellant was never
granted an opportunity to improve and there was no intimation
to him about his performance being unsatisfactory. Importantly,
no verifiable complaint was filed against the appellant that could
form the basis of the disciplinary proceeding against him. After
perusing all the relevant record, it is clear that the appellant was
competent to pass the bail order dated 27.04.2015 and the
Respondent has not been able to prove the presence of any
extraneous consideration or ulterior motive on the part of the
appellant. Also neither the bail order dated 27.04.2015 was ever
challenged by the State before any Court of law, nor was any
complaint received against the appellant regarding the said bail
order. This is not the case where there are strong grounds to
suspect the appellant’s bona fides. Even if appellant’s act is
considered to be negligent, it cannot be treated as “misconduct”.
[Para 71][741-F-H; 742-A-C]
18. The discharge order is quashed. Keeping in view that
the appellant has not worked as judicial officer after he was
discharged, it is directed that while the appellant be reinstated
with all consequential benefits including continuity of service and
seniority, but
will be entitled to be paid only 50% backwages.
[Para 72][742-D-E]
Director, Aryabhatta Research Institute of Observational
Sciences vs Devendra Joshi (2018) 15 SCC 73;
Rajasthan High Court vs. Ved Priya (Judgment dated
18-03-2020 of Supreme Court in Civil Appeal No.
8933-34/2017) and Bimla Devi vs State of Bihar (1994)
2 SCC 8 – distinguished.
Sukhdev Singh vs Union of India (2013) 9 SCC 566:
[2013] 5 SCR 1004; Maneka Gandhi vs Union of India
(1978) 1 SCC 248: [1978] 2 SCR 621; Shamsher Singh
vs State of Punjab (1974) 2 SCC 831: [1975] 1 SCR
814; State of Bihar vs. Gopi Kishore Prasad AIR 1960
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SC 689; Ishwar Chand Jain vs High Court of Punjab
and Haryana (1988) 3 SCC 370: [1988] 1 Suppl. SCR
396; Ramesh Chander Singh vs High Court of
Allahabad (2007) 4 SCC 247: [2007] 3 SCR 198; P.C.
Joshi vs State of U.P. (2001) 6 SCC 491: [2001] 1 Suppl.
SCR 369; Krishna Prasad Verma vs State of Bihar
(2019) 10 SCC 640: [2019] 12 SCR 861 and Sadhna
Chaudhary vs State of U.P. (2020) 11 SCC 760 – relied
on.
Pradip Kumar vs Union of India (2012) 13 SCC 182:
[2012] 9 SCR 1141; Radhey Shyam Gupta vs. U.P. State
Agro Industries Corporation Ltd. (1999) 2 SCC 21:
[1998] 3 Suppl. SCR 558 and Pavanendra Narayan
Verma vs. Sanjay Gandhi PGI of Medical Sciences
(2002) 1 SCC 520: [2001] 5 Suppl. SCR 41 – referred
to.
Case Law Reference
AIR 1960 SC 689
relied on
Para 21
(2018) 15 SCC 73
distinguished
Para 21
[1988] 1 Suppl. SCR 396 
relied on
Para 22
[2012] 9 SCR 1141 
referred to
Para 22
[1998] 3 Suppl. SCR 558 
referred to
Para 30
[2001] 5 Suppl. SCR 41 
referred to
Para 31
(2020) 11 SCC 760
relied on
Para 36
[2013] 5 SCR 1004
relied on
Para 47
[1978] 2 SCR 621 
relied on
Para 47
[1975] 1 SCR 814 
relied on
Para 49
(1994) 2 SCC 8
distinguished
Para 61
[2007] 3 SCR 198
relied on
Para 63
[2001] 1 Suppl. SCR 369
relied on
Para 65
[2019] 12 SCR 861
relied on
Para 67
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2029
of 2022.
From the Judgment and Order dated 21.10.2019 of the High Court
of Judicature for Rajasthan Bench at Jaipur in D.B. Writ Petition No.
6749 of 2016.
P. S. Patwalia, Sr. Adv., Nikhil Singhvi, Ms. Supriya Juneja, Aditya
Singla, Ms. Cheshtha Jetley, Obhirup Ghosh, Advs. for the Appellant.
Vijay Hansaria, Dr. Manish Singhvi, Sr. Advs., K. Parameshwar,
M. V. Mukunda, Sandeep Kumar Jha, Advs. for the Respondents.
The Judgment of the Court was delivered by
VINEET SARAN, J.
Leave Granted
2. The appellant, who joined as a judicial officer in 2013, having
been discharged from service in the year 2016, filed a Writ Petition in
the Rajasthan High Court, which was dismissed by the impugned judgment
dated 21.10.2019 passed by a Division Bench of the High Court.
Aggrieved by the same, this appeal has been filed by way of this Special
Leave Petition.
3. Brief facts relevant for the purpose of the present case are
that a notification inviting applications for District Judge Examination,
2013 was issued on 19.07.2011.The selection was to be madefrom
amongst the candidates of Advocates’ Quota under the Rajasthan Judicial
Services Rules, 2010 (for short ‘RJS Rules’). In the said examination,
the result of which was declared on 25.05.2013, the appellant stood
first. On 15.07.2013, the appellant was appointed to the post of Additional
District Judge under Rule 43 of the RJS Rules
read with Article 233(1)
of the Constitution of India and as per the Rule 44 of RJS Rules, the
appellant was to be on probation for a period of 2 years. By an order
dated 16.07.2013, the appellant was posted as an Additional District &
Sessions Judge No.2, Bharatpur, on which post he joined on 18.07.2013.
Then on 05.05.2014, the appellant was posted as Presiding Officer,
Labour and Industrial Tribunal, Bharatpur, on which post he joined on
06.05.2014. He was thereafter, by an order dated 24.02.2015, appointed
as Sessions Judge, Anti-Corruption Department (ACD), Bharatpur, on
which post he joined on 25.02.2015.
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4. It was during his posting as Sessions Judge, Anti-Corruption
Department, Bharatpur, that a bail was granted by the appellant, which
is the genesis of the action which has been taken against the appellant.
5. In a case under Section 7, 13(1)(d) and 13(2) of the Prevention
of Corruption Act, 1988, three accused namely K.K.Jalia, Alimuddin
and Irfan were arrested on 29.12.2014. The said K. K. Jalia, who was
the Chairman of the Municipal Corporation, was alleged to have taken a
bribe of Rs.5 Lakhs; Alimuddin, who was a Police Constable, was alleged
to have taken a bribe of Rs.10 Lakhs; and Irfan, was a non-official also
alleged to be involved in the case. On 08.01.2015, the predecessor of
the appellant dismissed the bail of K. K. Jalia and the bail of Alimuddin
was also dismissed on 03.02.2015.The Investigation Officer had sent a
letter to the concerned department seeking sanction of prosecution against
the said two accused, K. K. Jalia and Alimuddin on 18.02.2015. Charge
sheet was filed against all the three accused on 23.02.2015. It was at
this stage, on 25.02.2015, that the appellant was appointed as Sessions
Judge, Anti-Corruption Department.
6. Then on 04.03.2015, the second bail application of the accused
Alimuddin was rejected by the appellant. The bail application of K. K.
Jalia was rejected by the Rajasthan High Court on 11.03.2015. On
17.03.2015, the second bail application was filed by K. K. Jalia before
the appellant. It is noteworthy that the
Rajasthan High Court granted
bail to the co-accused Irfan (who was a private person) on 16.04.2015,
and then on 27.04.2015, bail was also granted to Alimuddin by the
Rajasthan High Court.
7. On the second bail application of K. K. Jalia filed on 17.03.2015,
the Court fixed 20.03.2015 along with the main file. Then on 18.03.2015,
on the main file the case was fixed for 31.03.2015 for filing of sanction
of prosecution of K. K. Jalia and till then the judicial custody of remand
was extended in the bail matter. On 20.03.2015, the bail matter was
adjourned for 31.03.2015. On 31.03.2015, the bail matter was adjourned
for 13.04.2015 and in the main file, 13.04.2015 was fixed for filing of
prosecution sanction against K. K. Jalia and for arguments on cognizance.
On 13.04.2015, on which date the appellant was on leave, the bail matter
was again adjourned by the officiating Presiding Officer for 16.04.2015,
and on the main file it was noted that no sanction against K. K. Jalia was
received and since the appellant was on leave, the case was fixed for
27.04.2015 for filing of sanction of prosecution against K. K. Jalia. On
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16.04.2015, a fresh application of bail was filed by the accused K. K.
Jalia stating that he was arrested on 27.12.2014 and charge sheet was
filed on 23.02.2015, but till date no sanction of prosecution as required
under Section 19 of the Prevention of Corruption Act, 1988, had been
given, and that the custody of the accused K. K. Jalia was illegal as the
accused could not be detained for an indefinite period. On the said date
the appellant, in his order, observed that from 23.02.2015 till date i.e.
16.04.2015, there was no document on the file which would indicate that
any progress has been made with regard to grant or refusal of sanction,
and accordingly, it was directed that such a progress report be filed with
regard to the efforts of the Anti-Corruption Department for grant of
sanction be submitted on 27.04.2015, and time was also granted to file
reply to the bail application by the next date i.e. 27.04.2015. On
17.04.2015, the matter was placed with regard to the attestation of bail
of Irfan, who had been granted bail by the Rajasthan High Court on
16.04.2015.
8. On 27.04.2015, on the main file, the investigation officer sought
time for filing of sanction against K. K. Jalia and 08.05.2015 was fixed
and till then, the judicial custody and remand of K. K. Jalia and Alimuddin
was extended. In the bail application of K. K. Jalia, which was also
fixed for 27.04.2015 and was taken separately, two letters had been
filed. One letter dated 24.04.2015 mentioned that a file for sanction of
prosecution of K. K. Jalia was submitted to the State Government, and
the other letter dated 27.04.2015, which was addressed to the appellant,
mentioned that a meeting to discuss whether the prosecution sanction
should be granted or not was held on 23.03.2015, but no decision had
been reached, and thus, the file had been sent back to the State
Government to take a decision in that regard and the same was still
pending. It was also pointed out that the other co-accused Alimuddin
(Police Constable) had been granted bail by the Rajasthan High Court
on the same date i.e. 27.04.2015. The appellant heard the matter of bail
of K. K. Jalia and granted bail to him by a detailed order. On 28.04.2015,
the matter for attestation of bail of Alimuddin was taken on the main file
as the Rajasthan High Court granted him bail on 27.04.2015. The sanction
of prosecution of K. K. Jalia was also received on the main file on
28.04.2015.
9. It appears from the record that the bail order in the case of K.
K. Jalia was called for by the Rajasthan High Court on 27.04.2015 itself
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and on 02.05.2015 the appellant was directed by the Rajasthan High
Court to submit his comments regarding the said order dated 27.04.2015.
The appellant submitted his response/comments on 12.05.2015 stating
therein that the fact of dismissal of bail by the Rajasthan High Court on
11.03.2015 was neither argued by the Counsel nor the copy of the order
was filed or produced, even though time was granted to the prosecution
on 16.04.2015to file the reply to the bail application. In the said reply, it
was admitted by the appellant that the fact of dismissal of the bail by the
Rajasthan High Court came to his notice from the memo of the second
bail application while he was dictating the bail order dated 27.04.2015,
and it was stated by the appellant in his reply that since the order of the
Rajasthan High Court dated 11.03.2015 was not produced before him,
he had thought that there was definitely a change in circumstances from
11.03.2015 as the period of the custody of the accused was nearing four
months and also that 48 days had passed from 11.03.2015 to 27.04.2015
and in the absence of prosecution sanction, especially when it could not
be known as to when such sanction would be granted, the trial could not
start. It was also stated by the appellant that other two co-accused,
whose bail application had been rejected by him earlier, had already
been granted bail by the Rajasthan High Court. After considering, the
explanation of the appellant, the Chief Justice of
the Rajasthan High
Court directed to initiate departmental enquiry under Rule 16 of Rajasthan
Civil Services (Classification, Control and Appeal) Rules, 1958 (for short
‘CCA Rules, 1958).
10. The said inquiry was initiated against the appellant vide
Memorandum dated 07.08.2015 for acts amounting to misconduct and
violation of Rule 3 and 4 of the Rajasthan Civil Services (Conduct Rules),
1971. The allegations levelled against the appellant included, inter alia,
that he should have desisted from granting bail to the accused K.K. Jalia
as there had been no material or substantial change in the facts and
circumstances of the case after the rejection of his earlier bail applications
by the appellant’s predecessors. Additionally, it was alleged that the
appellant had already rejected the second bail application of the co-
accused/Alimuddin on 04.03.2015 by observing therein that the matter
is grave in nature and that there was no change in circumstances after
the dismissal of his first bail application. It was also alleged that the
appellant passed the bail order with some ulterior or oblique motives and
for extraneous considerations.
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
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11. The appellant submitted his preliminary objections to the above
allegations on 29.09.2015, which came to be rejected by the Enquiry
Judge vide order dated 31.10.2015, withoutaffording the opportunity of
personal hearing to the appellant.
12. The Higher Judicial Committee, which consisted of five Judges
and which was constituted for deciding the confirmation and discharge
of Judicial Officers, on 24.11.2015, upon inspection of the appellant’s
records, decided not to recommend the appellant for confirmation.
13. On 20.01.2016, a Full Court meeting was convened
wherein,based on the recommendation submitted by the Higher Judicial
Committee, it was decided to discharge the appellant. Notably, the
appellant was discharged despite the pendency of the enquiry proceedings
initiated against him. On 27.01.2016, a discharge order was passed
against the appellant on the ground that the Full Court found the appellant’s
services to be unsatisfactory during the probation.
14. Subsequently, the enquiry against the appellant was closed on
02.05.2016. However, the department reserved the right to reopen the
same. On 05.05.2016, the High Court also closed the disciplinary
proceedings initiated against the appellant.
15. Aggrieved by the order dated27.01.2016, the appellant filed a
Writ Petition before the Rajasthan High Court on 18.05.2016 seeking
the following reliefs:
“(i)
Quashing of impugned order dated 27.01.2016 wherein
he was
discharged/removed from service
 (ii)
Quashing of the enquiry proceedings initiated against
the appellant by way of memorandum dated 07.08.2015
 (iii)
Quashing of conditional order dated 05.05.2016 passed
by Respondent No. 1 seeking to re-open enquiry
 (iv)
Reinstatement along with consequential benefits”
16. By an Order dated 21.10.2019, the Rajasthan High Court
dismissed the Writ Petition filed by the Appellant against the order dated
27.01.2016. While Dismissing the Petition, the High Court observed that:
“During the pendency of the inquiry against the petitioner,
Full Court Meeting was convened on 20.1.2016 and it was
decided to discharge the petitioner despite the pendency of
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the inquiry against him on the basis of report of Higher
Judiciary Committee and in this Committee one of the member
was the Inquiry Judge. Petitioner had already completed two
years of required probation period on 17.7.2015 and no
extension order or confirmation order was passed.Hence, the
order of discharge, though appeared to be simpliciter but had
been passed on account of inquiry initiated against the
petitioner.
……..
……..
……..
……..
……..
Thus, while granting bail to the accused, the petitioner took
into consideration the fact that the accused was arrested on
28.12.2014 and the charge-sheet had been filed on 23.2.2015.
However, prosecution sanction order of the accused had not
been received and trial could not begin till the prosecution
sanction order was received. A perusal of the bail order also
reveals that it was argued by the counsel for the accused that
the co-accused Alimuddin had been granted bail by this Court
on 27.04.2015.
……..
……..
……..
……..
The material question would be as to whether the petitioner
was aware of the fact that the bail petition filed by the accused
Kamlesh Kumar Jalia had been dismissed by the High Court.
……..
……..
……..
……..
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
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Thus, the fact that the bail petition by the accused had been
dismissed by the High Court was in the notice of the petitioner
when he had passed the order dated 27.04.2015 granting
bail to the accused. It is noteworthy that challan had already
been presented in the court when the bail petition filed by the
accused was dismissed by the High Court on 11.3.2015. At
that stage also prosecution sanction order of the accused had
not been received. Thus, there was no change in circumstance
warranting interference by the petitioner while granting bail
to the accused on second bail application after about 40 days
of the dismissal of his bail petition by this court.”
The High Court further held that:
“It is not material as to whether the prosecution had sought
cancellation of bail granted to the accused or not. The
complainant or the State may not have bothered to seek
cancellation of bail granted to the accused. Although, there
was no written complaint against the petitioner with regard
to grant of bail to the accused but there must have been some
oral complaint against the petitioner which resulted in seeking
his explanation by the High Court with regard to grant of
bail by him to the accused.
……..
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The High Court at the time of considering the case of
thepetitioner for conformation must have come to the
conclusion that it was not interested to ascertain the truth of
allegations levelled against thepetitioner
and opted to pass a
simpliciter order of dispensing with the services of
thepetitioner. The Full Court had also taken into consideration
the remarks of the Inspecting Judge as well as the
Administrative Judge with regard to the period 2014-II. The
High Court in its wisdom came to the conclusion that the
services of thepetitioner, who was on a probation, did not
require to be confirmed as he was unlikely to prove to be a
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good judicial officer. The impugned order is a simpliciter order
and cannot be termed as punitive. The issuance of charge-
sheet against the petitioner was not the foundation of passing
of the impugned order dated 27.1.2016. Rather, the impugned
order had been passed by keeping in view the overall service
record of the petitioner.
……..
……..
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In the present case, the service record of the petitioner
available with the Committee as well as the High Court was
merely a motive to assess the service record of the petitioner
with a view to decide whether he was to be confirmed in
service. It has been held by the Hon’ble Supreme Court in
Director Aryabhatta Research Institute of Observational
Science’s case (supra) that even in a case where a regular
departmental inquiry has been started and charge memo has
been issued and reply has been received and inquiry officer
has been appointed, and if at that time, inquiry is dropped
and a simple notice of termination is passed, the same would
not be punitive because the inquiry officer has not recorded
evidence nor given any finding on the charges. In the present
case also, though charges had been framed against the
petitioner and Inquiry Judge had been nominated but the
Inquiry Judge had not recorded any evidence nor had given
any finding on charges framed against the petitioner and thus,
the inquiry Judge had not reached to a logical conclusion.
The High Court in its wisdom thought of dispensing with the
services of the petitioner by passing a simpliciter order without
proceeding with the inquiry. After carefully considering the
facts and circumstances of the case, we are of the opinion
that the judgements relied upon by the learned counsel for
the petitioner fail to advance the case of thepetitioner.”
17. Aggrieved by the abovementioned High Court Order dated
21.10.2019, this appeal has been filed by the appellant by way of Special
Leave Petition.
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
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18. Mr.P.S. Patwalia, learned Senior Counsel for the Appellant,
has submitted that the impugned discharge order of the High Court was
not based upon “unsatisfactory performance” of the appellant, as is the
requirement under Rule 45 and 46 of the RJS Rules, but rather the
foundation of the said order lies in the enquiry initiated against the appellant
vide memorandum dated 07.08.2015. Therefore, it has been submitted,
that the order of discharge/termination is punitive in nature and is in
violation of Article 311(2) of the Constitution of India. To substantiate
the above submission, the learned Senior Counsel highlighted the
comments and observations from the Annual Confidential Reports (for
short “ACR”) of the appellant.
19. The learned Senior Counsel has also contended that there
was no valid complaint against the appellant and that in context of the
three complaints that have been relied upon by the respondent, it is crucial
to note that firstly, these three complaints were never communicated to
the Appellant during his service tenure;secondly, that even after the
first two complaints dated 07.02.2014 and 21.04.2014, the appellant was
promoted to the next higher post as District Judge in Labour Court; and
thirdly, that two of the three complaints relate to 2014 and were filed
and closed prior to the meeting of the Higher Judicial Committee and
therefore, could not have been the basis of the decision of the Higher
Judicial Committee.
20. Mr. Patwalia, has further contented that there was no infirmity
found in the appellant’s record and the entire recommendation of the
Higher Judicial Committee is based upon the passing of the bail order
dated 27.04.2015. The learned counsel has also highlighted the fact that
that the Enquiry Judge of the Disciplinary proceedings against the
appellant was also part of the Higher Judicial Committee which had to
provide recommendation regarding discharge/confirmation of judicial
officers. Furthermore, it has been urged that the High Court in the
impugned order has failed to provide any reasoning for stating as to how
the allegation of misconduct pertaining to the bail order was not the
foundation of the order of termination.
21. Reliance was placed on the Constitution Bench judgement of
this court in State of Bihar vs. Gopi Kishore Prasad [AIR 1960 SC
689] to argue that once an enquiry is initiated on charges of misconduct
and if services are terminated without following the provisions of Article
311(2) of the Constitution, then the said termination is illegal. Additionally,
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it was argued that the reliance placed in the impugned order of the High
Court on Director, Aryabhatta Research Institute of Observational
Sciences vs Devendra Joshi [(2018) 15 SCC 73] is misconceived.
22. The learned Senior Counsel relied upon this court’s judgement
in Ishwar Chand Jain vs High Court of Punjab and Haryana [(1988)
3 SCC 370] to argue that the appellant was not given an opportunity to
improve and that there was no intimation to him regarding his
performance being unsatisfactory. It was contented that the said
requirement has been further elaborated in Pradip Kumar vs Union of
India [(2012) 13 SCC 182], wherein this Court reinstated the officer
involved therein with consequential benefits because the discharge of
the officer was based on complaints and the officer was not given an
opportunity to improve.
23. It was also submitted that the appellant was the topper of his
batch in Rajasthan Judicial Services Examination and has had an overall
good record. Moreover, it was contented that the appellant further
continued on the post of Special Judge, ACB, Bharatpur, even pursuant
to the passing of the bail order and that neither any complaint was made
against the said bail order, nor was it challenged before the High Court.
24. With respect to the facts pertaining to the bail order dated
27.04.2015, the learned Senior Counsel has urged that if the appellant
had any illegal motive, he could have granted bail to the accused K.K.
Jalia on
16.04.2015 itself when the prosecution sanction was not brought
on record against the accused. However, the appellant listed the matter
for 27.04.2015 so as to give an opportunity to obtain the prosecution
sanction against the accused and a reply could be filed by the State. In
spite of the opportunity granted for obtaining the sanction and filing the
reply, the learned counsel contends that no reply was filed by the State.
25. Furthermore, it has been urged by the Senior Counsel that the
contention of the respondent regarding self- contradictory orders being
passed on 27.04.2015 in the main file and the bail matter is not tenable.
It is contended that even if the said orders are considered to be
contradictory, it only shows that the appellant had no malice or motive
towards extraneous consideration, since if the appellant had already pre-
decided that he would grant bail to the accused K.K. Jalia due to any
extraneous consideration, then the appellant would never have passed a
contradictory order in the first place.
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
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26. The learned Senior Counsel for the appellant concluded his
arguments by stating that the charges filed against the appellant are
vague in nature and that absolutely no details have been provided regarding
the said allegation of passing the bail order for extraneous considerations/
ulterior motive.
27. Per contra, Mr. Vijay Hansaria, learned Senior Counsel
appearing for the Respondent has submitted that the issue which arises
for consideration is “Whether the action of non-confirmation of the
Appellant is in accordance with Rules 45 and 46 of the Rajasthan
Judicial Service Rules, 2010?”
28. It has been contented by the learned Senior Counsel that a
perusal of the recommendation of the Higher Judicial Committee of 5
Judges, the decision of the Full Court and the Order of Discharge, would
demonstrate that it was a discharge simpliciter, as it was neither based
on any single act of impropriety nor an individual act formed the
foundation of the said discharge. Hence, it is contented, that the discharge
order in the present case is incapable of being interpreted as attaching
any stigma to the appellant, especially in light of the fact that the appellant
is not visited with any civil consequences.
29. The learned Senior Counsel for the Respondent has urged
that, while it is true that disciplinary proceedings were initiated against
the appellant in relation to the bail order dated 27.04.2015, the same
were closed on
05.05.2016 by reserving the right to reopen the same.
Meanwhile, only a discharge simpliciter order was passed. It has been
submitted that this Court has previously held that even where a
departmental enquiry was started, a simple termination order could be
passed by the employer as a matter of right and it would not amount to
a punitive termination. It was further contented that this Court has held
that an employer is entitled to say that he would not continue an employee
against whom allegations are made, the truth of which the employer is
not interested to ascertain.
30. Reliance was placed on this court’s judgement in Radhey
Shyam Gupta vs. U.P. State Agro Industries Corporation Ltd. [(1999)
2 SCC 21], wherein it has been held that:
“Even in a case where a regular departmental inquiry is
started, a charge-memo issued, reply obtained, and an enquiry
Officer is appointed — if at that point of time, the inquiry is
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dropped and a simple notice of termination is passed, the
same will not be punitive because the enquiry Officer has not
recorded evidence nor given any findings on the charges.
That is what is held in Sukh Raj Bahadur’s case [AIR 1968
SC 1089] and in Benjamin’s case (1967 1 LLJ 718 (SC)]. In
the latter case, the departmental inquiry was stopped because
the employer was not sure of establishing the guilt of the
employee. In all these cases, the allegations against the
employee merely raised a cloud on his conduct and as pointed
by Krishna Iyer, J. in Gujarat Steel Tubes case [(1980) 2 SCC
593], the employer was entitled to say that he would not
continue an employee against whom allegations were made
the truth of which the employer was not interested to ascertain.
In fact, the employer by opting to pass a simple order of
termination as permitted by the terms of appointment or as
permitted by the rules was conferring a benefit on the
employee by passing a simple order of termination so that the
employee would not suffer from any stigma which would attach
to the rest of his career if a dismissal or other punitive order
was passed. The above are all examples where the allegations
whose truth has not been found, and were merely the motive.”
(emphasis supplied)
31. The learned Senior Counsel further relied upon this court’s
judgement in Pavanendra Narayan Verma vs. Sanjay Gandhi PGI
of Medical Sciences[(2002) 1 SCC 520]wherein it was held that:
“One of the
judicially evolved tests to determine whether in
substance an order of termination is punitive is to see whether
prior to the termination there was (a) a full scale formal
enquiry (b) into allegations involving moral turpitude or
misconduct which (c) culminated in a finding of guilt. If all
three factors are present the termination has been held to be
punitive irrespective of the form of the termination order.
Conversely if any one of the three factors is missing, the
termination has been upheld.”
(emphasis supplied)
32. It was also contented by the learned Senior Counsel that
reliance placed by the appellant on the decision of this court in Pradip
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Kumar (supra) is misplaced, since this court had, in that case, found
that the discharge therein was violative of the rules framed under the
applicable statute. Moreover, it was urged that, in that case, there was
no material placed before the Court regarding the fact that the officer
was otherwise unsuitable to be continued.
33. Mr. Hansaria has contended that, in light of the above judicial
pronouncements, the approach in judicial review proceedings is not
whether the truth about the allegations has been conclusively established,
but whether the employer had the right to say that a probationer against
whom allegations are made, ought to be discharged simpliciter. It was
further submitted that without going into the conclusive analysis relating
to the grant of the bail order dated 27.04.2015, the four factors that
ought to have been considered unpalatable for an employer, especially
from a judicial officer under probation are hereinbelow mentioned:
a.
Two conflicting orders were passed on 27.04.2015, one in
the main matter and other in the bail application. While the
custody of accused was extended and time was granted to
the State to produce prosecution sanction in the main matter,
bail was granted to him on the same date on the ground
that the sanction order has not been produced.
b.
The officer on probation considered it irrelevant or
immaterial while granting the bail order to even peruse the
two orders passed
by the High Court. Firstly, the order
granting bail to Mr. Alimuddin on the same day, but chose
to incorporate it as a reason for granting bail to Mr. K.K.
Jalia. Secondly, the order of rejection of the bail by the
High Court on 11.03.2015, especially when such rejection
was after the filing of the chargesheet. Moreover, the second
bail application was filed within 7 days of the rejection by
the High Court and there were no new intervening
circumstances.
c.
The bail application was adjourned by the appellant at the
request of the Counsel of the accused on at least 4 occasions
i.e. 17.03.2015, 20.03.2015, 31.03.2015 and 13.04.2015.
However, on 27.04.2015, the appellant did not wait for a
single day for sanction of prosecution by the State
Government. This is clearly contrary to the submission made
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that the prosecution repeatedly took time to respond to the
bail application.
d.
There appears to be a conflicting stand of the officer, in his
explanation dated 12.05.2015 and his reply dated 07.11.2015,
with respect to the knowledge of the High Court order dated
11.03.2015 in which the court rejected the bail application
of K.K. Jalia. The undisputed fact remains that the rejection
of the bail by the High Court was mentioned in the first
page of the second bail application and was not noticed by
the appellant in the bail order passed by him on 27.04.2015.
34. Mr. Hansaria thus contended thatthe above four factors,
especially the failure to peruse the orders passed by the High Court,
could be considered as relevant factors while considering whether the
appellant had failed to give satisfactory performance expected of an
officer under probation under Rule 46(1) of the RJS Rules, 2010.
35. Reliance has been placed upon this court’s judgement dated
18.03.2020 in Rajasthan High Court vs. Ved Priya (Civil Appeal No.
8933-34/2017) to urge that “merely because Respondent No. 1’s ACRs
were consistently marked “Good”, it cannot be a ground to bestow
him with a right to continue in service.”.
36. It was further contented that the reliance placed by the appellant
onthis Court’s order in the case of Sadhna Chaudhary vs State of U.P.
[(2020)11 SCC 760] is misplaced because that was a case of removal
of a judicial officer after conducting a disciplinary inquiry and
was not a
case relating to a probationer. Mr. Hansaria submitted that the action of
the appellant ought not to be interpreted as a bona fide mistake but
should be seriously considered as negligence.
37. The learned Senior Counsel contented that in addition to the
above submissions, it is also relevant to note that during the probation
period of the Appellant, the High Court had received three Complaints
which pertained to serious allegations of working, behaviour and integrity
of the appellant, and even if these complaints were directed to be closed
by the Chief Justice of the High Court, the same were still relevant.
38. Mr. Hansariaconcluded his submissions by stating that the
appellant has not been able to establish any gross impropriety or
procedural irregularity of an extent that warrants interference by this
Court.
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
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39. For ready reference, the relevant provisions of the Constitution
of India and the concerned Rules are extracted below:
Article 311(2) of the Constitution of India
“311. Dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or a State
(2) No such person as aforesaid shall be dismissed or
removed or reduced in rank except after an inquiry in
which he has been informed of the charges against
him and given a reasonable opportunity of being heard
in respect of those charges; Provided that where it is
proposed after such inquiry, to impose upon him any
such penalty, such penalty may be imposed on the basis
of the evidence adduced during such inquiry and it
shall not be necessary to give such person any
opportunity of making representation on the penalty
proposed:
Provided further that this clause shall not apply
(a) where a person is dismissed or removed or reduced
in rank on the ground of conduct which has led to
his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or
remove a person or to reduce him in rank is satisfied
that for some reason, to be recorded by that authority
in writing, it is not reasonably practicable to hold
such inquiry; or
(c) where the President or the Governor, as the
case may be, is satisfied that in the interest of the
security of the State, it is not expedient to hold
such inquiry.”
Rule 45 of the Rajasthan Judicial
Service Rules, 2010
“45. Confirmation.- (1) A probationer appointed to the
service in the cadre of Civil Judge shall be confirmed in
his appointment by the Court at the end of his initial or
extended period of probation, if the Court is satisfied that
he is fit for confirmation.
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(2) A person appointed to the service in the cadre of Senior
CivilJudge by promotion shall be substantively appointed
by the Court in the cadre as and when permanent
vacancies occur.
(3) A probationer appointed to the service in the cadre of
District Judge by direct recruitment shall be confirmed in
his appointment by the Court at the end of his initial or
extended period of probation, if the Court is satisfied that
he is fit for confirmation.
(4) A person appointed to the service in the cadre of District
Judge by promotion on the basis of merit-cum-seniority or
by Limited Competitive Examination shall be confirmed in
his appointment by the Court on availability of permanent
vacancies in the cadre.”
Rule 46 of the Rajasthan Judicial Service Rules, 2010
“46. Unsatisfactory progress during probation and
extension of probation period.- (1) If it appears to the Court,
at any time, during or at the end of the period of probation
that a member of the service has not made sufficient use of
the opportunities made available or that he has failed to
give satisfactory performance, the Appointing Authority
may, on recommendations of the Court, discharge him from
service:
Provided that the Court may, in special cases, for reasons
to be recorded in writing, extend the period of probation
of any member of the service for a specified period not
exceeding one year.
(2) An order sanctioning such extension of probation shall
specify the exact date up to which the extension
is granted
and further specify as to whether the extended period will
be counted for the purpose of increment.
(3) If the period of probation is extended on account of
failure to give satisfactory service, such extension shall
not count for increments, unless the authority granting the
extension directs otherwise.
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(4) If a probationer is discharged from service during or
at the end of the initial or extended period of probation
under sub-rule (1), he shall not be entitled to any claim
whatsoever.”
Rule 3 of the Rajasthan Civil Services (Conduct) Rules,
1971
“3. General. – (1) Every Government servant shall at all
times–
(i) maintain absolute integrity; and
(ii) maintain devotion to duty and dignity of office.
(2) (i)Every Government Servant holding a supervisory post
shall take all possible steps to ensure the integrity and
devotion to duty of all Government servants for the time
being under his control and authority;
(ii) No Government servant shall, in the performance of
his official duties or in the exercise of powers conferred
on him, act otherwise than in his best judgment except when
he is acting under such direction, obtain the direction in
writing, wherever practicable, and where it is not
practicable to obtain the direction in writing, he shall obtain
written confirmation of the direction as soon thereafter as
possible.
Explanation– Nothing in clause (ii) of sub–rule (2) shall
be constituted as empowering a Government servant to
evade his responsibilities by seeking instructions from, or
approval of, a superior officer or authority when such
instructions are not necessary under the scheme of
distribution of powers and responsibilities.”
Rule 4 of the Rajasthan Civil Services (Conduct) Rules,
1971
“4. Improper and
unbecoming conduct. – Any Government
servant who –
(i) is convicted of an offence involving moral turpitude
whether in the course of the discharge of his duties or not;
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(ii) behaves in public in a disorderly manner unbecoming
of his position as a Government servant; or
(iii) is proved to have sent an anonymous or Pseudonymous
petition to any person in authority;
(iv) leads an immoral life;
(v) disobeys lawful order or instructions of superior officer
or defies the superior officer;
(vi) without sufficient and reasonable cause, neglects or
refuses to maintain his/her spouse, parent, minor or
disabled child who isunable to maintain himself/herself or,
does not look after any of them in a responsible manner;
(vii) willfully tempers with the meter or any other equipment
or the power/water line with a view to causing financial
loss to any of the Departments/Companies providing public
utilities like power and water;
–shall be liable to disciplinary action.”
40. We have heard learned Senior Counsel for both the parties at
length and have carefully perused the record.
41. The submission of the respondent that the discharge of the
appellant was a discharge simpliciter and not violative of Article 311(2)
of the Constitution of India is not worthy of acceptance. The High Court
has erred in holding that the discharge order of the appellant was a
simpliciter order and not punitive in nature. In spite of observing that the
order of discharge had been passed on account of inquiry initiated against
the appellant, the High Court failed to provide any reasoning as to how
the allegation of misconduct pertaining to the bail order was not
the
foundation of the order of discharge.
42. At this juncture, it is relevant to turn to the Reports and ACRs
of the appellant and the material placed before the Higher Judicial
Committee to scrutinize whether the discharge was based upon
“unsatisfactory performance” of the appellant, or whether it was based
on the enquiry initiated against the appellant.
43. The material placed before the Higher Judicial Committee,
which recommended the discharge of the appellant, clearly shows that
no adverse remarks were made against the appellant except in relation
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to the grant of bail on 27.04.2015. The said material consisted of Bi-
Annual Reports/Special Reports and the ACRs of the appellant. The Bi-
annual/Special Reports for the period of July 2013-January 2014, January
2014-July 2014 and July 2014-January 2015, which were placed before
the committee makes it clear that the work and conduct of the appellant
was “good” and his integrity was never doubted. Furthermore, the ACR
of the appellant for the year 2013 contains the comment “very good”
and mentions that the integrity of the appellant was never in doubt.
Similarly, the ACR for the year 2014(Part-I) records the comment “very
good” for the appellant and also provides him with an integrity certificate.
44. The ACR for the year 2014(Part-II) contains the remark
“good” for the appellant. During this period, the appellant was working
as the Presiding Officer, Labour cum Industrial Tribunal. In this context,
it is pertinent to note that the comment by the Inspecting Judge regarding
the requirement to “improve judicial work” is based upon the enquiry
initiated against the appellant vide chargesheet issued on 07.08.2015,
which related to his functioning as Special Judge, ACD cases Court,
Bharatpur and not for the period of 2014. Additionally, the aforesaid
comment by the Inspecting Judge is contrary to the comments made by
him in the Special Report for the contemporaneous period which clearly
records his conduct, performance
and work throughout the period to be
“good”. Lastly, no adverse remark is made even by the Administrative
Judge, who only added an advisory remark for the officer to concentrate
on judicial work and improve the quality. Notably, no remark was made
against the integrity of the appellant.
45. The ACR for the year 2015 has been heavily relied upon by
the learned counsel of the Respondent to submit that the Inspecting
Judge of the High Court remarked that the integrity of the appellant was
“not free from doubt” and the integrity certificate of the appellant was
withheld by the Inspecting Judge and that the Administrative judge had
recorded the remark in the 2015 ACR that “integrity of the officer is
doubtful. In my overall assessment, I rate the officer average”.
46. In our opinion, to argue that the comments and observations in
this 2015 ACR were the basis on which the appellant was discharged, is
misplaced and erroneous. Firstly, a bare perusal of the ACR reveals
that the top of this ACR itself carried a comment that read “Discharged
from Service”. Secondly, the Higher Judicial Committee had, even prior
to the submission of the 2015 ACR, already recommended the discharge
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of the appellant. Notably, the ACR for the year 2015 was filled and
submitted by the appellant on 20.01.2016, while the Higher Judicial
Committee had already recommended the discharge of the appellant on
24.11.2015 itself and the impugned order of discharge was passed on
27.01.2016, admittedly, in pursuance of a Full Court meeting on
20.01.2016. Additionally, although the learned counsel for the respondent
had submitted before us that the Integrity Certificate of the Appellant
was withheld by the Inspecting Judge, he failed to highlight that the
reason for the certificate being withheld was that the appellant had been
served with a chargesheet and not because of the appellant’s service
record.
47. Moreover, it is not disputed that the ACRs were not
communicated to him within reasonable time. In this context, a 3-Judge
Bench of this Court in Sukhdev Singh vs Union of India [(2013) 9
SCC 566] has held that:
“In our opinion, the view taken in Dev Dutt [Dev Dutt vs
Union of India] that every entry in ACR of a public servant
must be communicated to him/her within a reasonable period
is legally sound and helps in achieving threefold objectives.
First, the communication of every entry in the ACR to a public
servant helps him/her to work harder and achieve more that
helps him in improving his work and give better results.
Second and equally important, on being made aware of the
entry in the ACR, the public servant may feel dissatisfied with
the same.
Communication of the entry enables him/her to make
representation for upgradation of the remarks entered in the
ACR. Third, communication of every entry in the ACR brings
transparency in recording the remarks relating to a public
servant and the system becomes more conforming to the
principles of natural justice. We, accordingly, hold that every
entry in ACR-poor, fair, average, good or very good-must be
communicated to him/her within a reasonable period.”
(emphasis supplied)
Hence, in light of the above, the non-communication of the ACRs
to the appellant in the present case is arbitrary and as has been held by
this court in Maneka Gandhi vs Union of India [(1978) 1 SCC 248],
such arbitrariness violated Article 14 of the Constitution of India.
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
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48. Further, a Constitution Bench of this Court in Gopi Kishore
Prasad (supra) has held that:
“The main question for determination in this appeal by special
leave is whether the provisions of Article 311(2) of the
Constitution are applicable to a probationer in the Bihar
Subordinate Civil Service, who has been discharged as
unsuitable on grounds of notoriety for corruption and
unsatisfactory work in the discharge of his public duties.
……..
……..
It would thus appear that, in the instant case, though the
respondent was only a probationer, he was discharged from
service really because the Government had, on enquiry, come
to the conclusion, rightly or wrongly, that he was unsuitable
for the post he held on probation. This was clearly by way of
punishment and, therefore, he was entitled to the protection
of Article 311(2) of the Constitution. It was argued on behalf
of the appellant that the respondent, being a mere probationer,
could be discharged without any enquiry into his conduct
being made and his discharge could not mean any punishment
to him, because he had no right to a post. It is true that, if the
Government came to the conclusion that the respondent was
not a fit and proper person to hold a post in the public service
of the State, it could discharge him without holding any
enquiry into his alleged misconduct. If the Government
proceeded against him in that direct way, without casting any
aspersions on his
honesty or competence, his discharge would
not, in law, have the effect of a removal from service by way
of punishment and he would, therefore, have no grievance to
ventilate in any court. Instead of taking that easy course, the
Government chose the more difficult one of starting
proceedings against him and of branding him as a dishonest
and an incompetent officer. He had the right, in those
circumstances, to insist, upon the protection of Article 311(2)
of the Constitution. That protection not having been given to
him, he had the right to seek his redress in court. It must,
therefore, be held that the respondent had been wrongly
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deprived of the protection afforded by Article 311(2) of the
Constitution. His removal from the service, therefore, was not
in accordance with the requirements of the Constitution.”
(emphasis supplied)
This Court also further observed that:
“In our opinion, the controversy raised in this case is
completely covered by the decision of the Constitution Bench
of this Court in Dhingra’s case, (1958)1 LLJ544SC. The main
question for decision in that case was whether the appellant
Dhingra had been reduced in rank by way of punishment as
a result of the order of the General Manager of the Railway.
Though, in that case, this Court decided that the order
impugned had not that effect, this Court went elaborately into
all the implications of the service conditions, with particular
reference to the Railway Service Rules and the constitutional
provisions contained in Section 240 of the Government of
India Act, 1935 and Article 311 of the Constitution. The
elaborate discussion in that judgment has reference to all
stages of employment in the public services including
temporary posts, probationers, as also confirmed officers. In
so far as those observations have a bearing on the termination
of service or discharge of a probationary public servant, they
may be summarized as follows :
1 . Appointment to a post on probation gives to the person
so appointed no right to the post and his service may be
terminated, without taking recourse to the proceedings laid
down in the
relevant rules for dismissing a public servant,
or removing him from service.
2 . The termination of employment of a person holding a
post on probation without any enquiry whatsoever cannot
be said to deprive him of any right to a post and is,
therefore, no punishment.
3.But, if instead of terminating such a person’s service
without any enquiry, the employer chooses to hold an
enquiry into his alleged misconduct, or inefficiency, or for
some similar reason, the termination of service is by way
of punishment, because it puts a stigma on his competence
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and thus affects his future career. In such a case, he is
entitled to the protection of Article 311(2) of the
Constitution.
4. In the last mentioned case, if the probationer is
discharged on any one of those grounds without a proper
enquiry and without his getting a reasonable opportunity
of showing cause against his discharge, it will amount to a
removal from service within the meaning of Article 311(2)
of the Constitution and will, therefore, be liable to be struck
down.
5. But, if the employer simply terminates the services of a
probationer without holding an enquiry and without giving
him a reasonable chance of showing cause against his
removal from service, the probationary civil servant can
have no cause of action, even though the real motive behind
the removal from service may have been that his employer
thought him to be unsuitable for the post he was temporarily
holding, on account of his misconduct, or inefficiency, or
some such cause.”
(emphasis supplied)
49. A 7-Judge Bench of this Court in Shamsher Singh vs State
of Punjab [(1974) 2 SCC 831] has held that:
“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 thosecases 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, 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.
……..
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The fact of holding an enquiry is not always conclusive. What
is decisive is whether the order is really by way of punishment
(see State of Orissa v. Ram Narayan Das [AIR 1961 SC 177 :
(1961) 1 SCR 606 : (1961) 1 SCJ 209] ). 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 [AIR 1963
SC 531 : (1963) 3 SCR 716 : (1963) 2 SCJ 185] ). In R.C.
Lacy v. State of Bihar [ Civil Appeal No. 590 of 1962, decided
on October 23, 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)
……..
……..
……..
……..
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) 1
SCC 790 : 1971 Supp SCR 118] ).
……..
……..
……..
……..
In the facts and circumstances of this case it is clear that the
order of termination of the appellant
Shamsher Singh was,
one of punishment. The authorities were to find out the
suitability of the appellant. They however concerned
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themselves with matters which were really trifle. The appellant
rightly corrected the records in the case of Prem Sagar. The
appellant did so with his own hand. The order of termination
is in infraction of Rule 9. The order of termination is therefore
set aside.”
(emphasis supplied)
50. The present case of the appellant is squarely covered by the
abovementioned Constitution Bench judgements of this Court. Since the
Government had, on enquiry, come to the conclusion, rightly or wrongly,
that the appellant was unsuitable for the post he held on probation, this
was clearly by way of punishment and, hence, the appellant would be
entitled to the protection of Article 311(2) of the Constitution. Moreover,
in the facts and circumstances of the present case, the substance of the
termination order reveals that the discharge was by way of punishment.
Hence, the question that whether the action of non-confirmation of the
appellant is in accordance with Rules 45 and 46 of the RJS Rules is
answered in the Negative.
51. We also find merit in the submission of the appellant that the
adverse comments in the ACR for the year 2015 could not have been
the basis on which the appellant was discharged from service.
Additionally, it is pertinent to note that the learned counsel for the
Respondent has himself submitted that the ACR for the year 2015 was
recorded after the discharge order was passed and that the comments
of the
Administrative Judge were made on 08.06.2016 and are based
upon the enquiry and the subsequent discharge of the appellant. Moreover,
upon the perusal of the ACR for the year 2015, it is revealed that despite
the comments recorded, the overall performance of the Appellant was
rated as “good” by the Inspecting Judge himself. Part-II of the said
ARC also contains the comment “good” on the appellant’s capacity of
handling files systematically and the comment “Yes” on whether the
appellant is fair and impartial in dealing with the public and the bar.
Therefore, we are of the opinion that the submissions of the learned
counsel of the appellant holds merit that there was no material on record
to showcase unsatisfactory performance of the appellant in terms of
requirement under Rule 45 and 46 of the RJS Rules, 2010.
52. There appears to be no infirmity in the appellant’s record and
the entire recommendation of discharge by the Higher Judicial Committee
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is based upon the passing of the bail order dated 27.04.2015. Moreover,
it is also pertinent to note that the Enquiry Judge of the Disciplinary
Proceeding against the appellant was also a part of the Higher Judicial
Committee which had to provide recommendations regarding discharge/
confirmation of judicial officers.
53. Importantly, the appellant was never granted an opportunity
to improve and there was no intimation to him about his performance
being unsatisfactory. This requirement of affording an opportunity of
improvement has been stressed upon by this Court on multiple occasions
and has also been envisaged under Rule 46(1) of the RJS Rules, 2010.
Notably, this Court in Ishwar Chand Jain (supra)has held that:
“.....It is thus clear that so far as annual entry on the
appellant’s confidential roll is concerned there was no
material against him which could show that the appellant’s
work and conduct was unsatisfactory. The facts and
circumstances discussed earlier clearly show that the
appellant’s services were terminated merely on the basis of
the report made by the vigilance judge which we have
discussed in detail earlier. The note appended to the agenda
of the meeting referred only to the inquiry report and it did
not refer to any other matter. The Vigilance Judge failed to
express any positive opinion against the appellant instead he
observed that the complaints required further investigation.
If the High Court wanted to take action against the
appellant
on the basis of the complaints which were the subject of
enquiry by the vigilance judge, it should have initiated
disciplinary proceedings against the appellant, then the
appellant could get opportunity to prove his innocence. We
have already discussed in detail that the facts stated in the
complaints and the report submitted by the vigilance judge
did not show any defect in appellant’s work as a judicial
officer. While considering complaints of irregularities against
a judicial officer on probation the High Court should have
kept in mind that the incidents which were subject matter of
enquiry related to the very first year of appellant’s service.
Every judicial officer is likely to commit mistake of some kind
or the other in passing orders in the initial stage of his service
which a mature judicial officer would not do. However, if the
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orders are passed without there being any corrupt motive,
the same should be over-looked by the High Court and proper
guidance should be provided to him. If after warning and
guidance the officer on probation is not able to improve, his
services should be terminated.
14. Under the Constitution the High Court has control over
the subordinate judiciary. While exercising that control it is
under a constitutional obligation to guide and protect judicial
officers. An honest strict judicial officer is likely to have
adversaries in the mofussil courts. If complaints are
entertained on trifling matters relating to judicial orders which
may have been upheld by the High Court on the judicial side
no judicial officer would feel protected and it would be
difficult for him to discharge his duties in an honest and
independent manner. An independent and honest judiciary is
a sine qua non for Rule of law. If judicial officers are under
constant threat of complaint and enquiry on trifling matters
and if High Court encourages anonymous complaints to hold
the field the subordinate judiciary will not be able to
administer justice in an independent and honest manner. It is
therefore imperative that the High Court should also take steps
to protect its honest officers by ignoring ill-conceived or
motivated complaints made by the unscrupulous lawyers and
litigants.Having regard to facts and circumstances of the
instant case we have no doubt
in our mind that the resolution
passed by the Bar Association against the appellant was
wholly unjustified and the complaints made by Sh. Mehalawat
and others were motivated which did not deserve any credit.
Even the vigilance judge after holding enquiry did not record
any finding that the appellant was guilty of any corrupt motive
or that he had not acted judicially. All that was said against
him was that he had acted improperly in granting
adjournments.”
(emphasis supplied)
54. We are in agreement with the ratio laid down in the case of
Ishwar Chand Jain (supra) that every judicial officer is likely to commit
mistake of some kind or the other in passing orders in the initial stage of
his service, which a mature judicial officer would not do. However, if
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the orders are passed without there being any corrupt motive, the same
should be over-looked by the High Court and proper guidance should be
provided to him. In the present case, admittedly there was no intimation
to appellant about his performance being unsatisfactory and hence he
was deprived of his opportunity to improve as a judicial officer.
55. In context of the three complaints filed against the appellant, it
is important to note that the same were never communicated to the
petitioner during his service tenure and that the complaints had been
subsequently closed. Moreover, two out of the three complaints were
closed prior to the meeting of the Higher Judicial Committee and
therefore, could not have been the basis of the decision of the Committee.
Additionally, in so far as the complaint dated 20.10.2015 (bearing No. R/
V/JP/PIN/118/2015) is concerned, it is neither supported by any affidavit
nor has any address been provided in it and importantly, was also closed
by the respondent prior to the appellant’s discharge order. In this context,
it is pertinent to refer to the Standing Order No. 03./S.O./2015 dated
10.06.2015 which directed that:
“The complaint making allegations against members of the
subordinate judiciary in the states should not be entertained
and no action should be taken thereon, unless it is
accompanied by a duly sworn affidavit and verifiable material
to substantiate the allegations made therein
……..
……..
……..
The entry of the
complaint in the pre-institution register for
inward number will not be treated as pendency of Vigilance
matter against the Judicial Officer and will not be taken into
consideration against the Judicial Officer in any service
matter including transfer, promotion and for compulsory
retirement.”
(emphasis supplied)
In the present case, the record clearly showcases that no verifiable
complaint was filed against the appellant that could form the basis of the
disciplinary proceeding against him.
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56. With respect to the grant of bail order dated 27.04.2015, the
record reveals that when the bail application of the accused K.K. Jalia
was listed before the Court of the appellant, no reply was filed by the
State and the prosecution,despite being given the opportunity to file their
reply, neither argued nor brought on record the fact about the bail of the
accused being denied by the High Court. Additionally, it is evident from
the record that the Investigating Officer produced two letters dated
24.04.2015 and 27.04.2015 by the competent authority that clearly stated
that the file was submitted to the State Government for decision regarding
sanction. No time was specified regarding when the decision was likely
to be taken. Letter dated 27.04.2015 filed by the Investigating Officer
clearly stated that the meeting was held with competent authority on
23.03.2015 and that the file was sent to the State Government for their
decision. Therefore, it is evident that the competent authority could not
decide the matter and had sent it to the State Government with no timeline
in sight. Moreover, the counsel of the accused informed the appellant
that the co-accused Alimuddin and Irfan had already been granted bail
by the High Court and this was a relevant consideration to appellant’s
mind. The fact of Alimuddin being granted bail was even more relevant
for the appellant because he was aware of Alimuddin’s role in the case
and
also the fact that despite prosecution sanction having been granted
against Alimuddin, he was granted bail by the High Court.
57. In light of the above, the appellant could not be said to be at
fault in granting bail to K.K. Jalia since the bail order dated 27.04.2015
was based on the non-grant of prosecution sanction and no progress in
relation to the same being brought on record. The appellant even recorded
that the State should act swiftly in relation to the grant of prosecution
sanctions in such matters. Also, it is settled law that the appellant, under
section 439 Cr.P.C., could have granted bail to the accused even
subsequent to the rejection of the bail by the High Court.
58. Additionally, we do not find merit in the submission of the
learned counsel of the respondent that the appellant did not consider it
relevant to look into the order of rejection of the bail by the High Court
on 11.03.2015. From the record it is clear that despite being granted an
opportunity to file their reply, the prosecution itself failed to either argue
before the appellant or bring the High Court order on record. Moreover,
even the contention of the Senior Counsel for the respondent that the
appellant had given contradictory orders does not hold water since the
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main matter was taken prior in the day when the standard order extending
remand was passed in light of there being no sanction since cognizance
could not be taken. The said order was necessary, since at that time, the
bail application had not been heard and the possibility was that the bail
may or may not have been heard on that day, or may even have been
denied. Even otherwise, if the said orders are considered to be
contradictory, it only shows, as has been rightly argued by the learned
counsel of the appellant, that the appellant was not motivated by
extraneous considerations and had not already decided that he was going
to grant bail to the accused, since in that eventuality, he would never
have passed such contradictory orders in the first place.
59. We do not find merit in the contention of the learned counsel
of the respondent that there appears to be a conflicting stand of the
appellant, with respect to the knowledge of the High Court Order dated
11.03.2015in his explanation dated 12.05.2015 and his reply dated
07.11.2015. Notably, the appellant in his explanation dated 12.05.2015
stated that the appellant came to know of the order dated 11.03.2015
only while dictating the bail order dated 27.04.2015 and whereas in the
appellant’s reply dated 07.11.2015, the reference is with respect to “date
of filing” of the bail application before the High Court not being given in
the memo of second bail application filed before the appellant. The reply
dated
07.11.2015 further specifically stated that the “contents of order”
dated 11.03.2015 were not in the appellant’s knowledge. Therefore, there
appears to be no contradiction with respect to the knowledge of the
High Court order dated 11.03.2015in the appellant’s explanation dated
12.05.2015 and his reply dated 07.11.2015. In essence, the appellant
honestly admitted in his comment that he had come across the reference
of the dismissal of the first bail application whilst dictating the bail order
but exercised his discretion in granting bail to the accused given the
uncertainty and delay in prosecution sanction and the intervening grant
of bail to the two other co-accused by the High Court, even when the
prosecution sanction had been granted for one of the co-accused.
60. The learned counsel for the Respondent relied upon the
judgement of this Court in the case of Rajasthan High Court vs. Ved
Priya (supra)to content that merely because an officer’s ACRs were
consistently marked “Good”, it cannot be a ground to bestow him with a
right to continue in service. However, we hold that this reliance placed
by the respondent is misplaced and erroneous. Firstly, what was
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considered in the said case were multiple acts of granting bail in matters
under the NDPS Act without having jurisdiction to do the same. It was
not the act of grant of bail in a single matter like in the present case.
Additionally, unlike in the present case, the officer in that case had passed
an order without proper jurisdiction. Secondly, unlike in the present case,
no enquiry was initiated or pending against the officer in that case. In
fact, this Court in aforesaid itself has held that:
“True it is that the form of an order is not crucial to determine
whether it is simplicitor or punitive in nature. An order of
termination of service though innocuously worded may, in
the facts and circumstances of a peculiar case, also be aimed
at punishing the official on probation and in that case it
would undoubtedly be an infraction of Article 311 of the
Constitution. The Court in the process of judicial review of
such order can always lift the veil to find out as to whether
or not the order was meant to visit the probationer with penal
consequences.
……..
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If the genesis of the order of termination of service lies in a
specific act of misconduct, regardless of over all satisfactory
performance of duties during the probation period, the Court
will be well within its reach to unmask the hidden cause and
hold that the simplicitor order of termination, in fact, intends
to punish the probationer without
establishing the charge (s)
by way of an enquiry. However, when the employer does not
pick-up a specific instance and forms his opinion on the basis
of overall performance during the period of probation, the
theory of action being punitive in nature, will not be
attracted.”
(emphasis supplied)
Hence the reliance placed by the learned counsel of the respondent
on Rajasthan High Court vs. Ved Priya (supra) is misplaced.
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61. Importantly, the order of grant of bail dated 27.04.2015 was
never challenged by the State before the High Court. Moreover, no
complaint was ever filed against the appellant with respect to the grant
of bail. Hence, reliance placed by the learned counsel of the Respondent
on Bimla Devi vs State of Bihar [(1994) 2 SCC 8] is also misplaced
and erroneous.
62. We also find merit in the submission of the learned counsel of
the appellant that the charges filed against the appellant are vague in
nature and that absolutely no details have been provided regarding the
said allegation of passing the bail order for extraneous considerations/
ulterior motive. In this context, there is no detail provided as to what was
the said extraneous consideration or ulterior motive, but merely an
inference has been drawn on the basis of suspicion. Further, the record
reveals that no complaint or other material exists which could form the
basis of the said allegations.
63. A 3-Judge bench of this court in Ramesh Chander Singh vs
High Court of Allahabad [(2007) 4 SCC 247]has specifically held
that:
“This Court on several occasions has disapproved the
practice of initiation of disciplinary proceedings against
officers of the subordinate judiciary merely because the
judgments/orders passed by them are wrong. The appellate
and revisional courts have been established and given powers
to set aside such orders. The higher courts after hearing the
appeal may modify or set aside
erroneous judgments of the
lower courts. While taking disciplinary action based on
judicial orders, the High Court must take extra care and
caution.
.……..
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However, the learned Judge inquiring the matter eventually
came to the conclusion that the bail had been granted by the
appellant in utter disregard of judicial norms and on
insufficient grounds and based on extraneous consideration
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with oblique motive and the charges had been proved. It is
important to note that the Judge who conducted the enquiry
has not stated in his report as to what was the oblique motive
or the extraneous consideration involved in the matter.
……..
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The counsel for the respondent pointed out that on three
previous occasions the bail had been declined to the very
same accused and as there was no change in the
circumstances, the appellant-officer should not have
considered the fourth bail application as well. Of course, in
the previous bail applications, many of the contentions raised
by the accused were considered, but an accused has the right
to file bail application at any stage when undergoing
imprisonment as an under-trial prisoner. The fact that the two
other accused had already been enlarged on bail was a valid
reason for granting bail to accused Ram Pal. Moreover,
accused Ram Pal had been in jail for one year as an under-
trial prisoner and the charge-sheet had already been filed.
In our opinion, if accused Ram Pal were to be denied bail in
these circumstances, it would have been a travesty of justice
especially when all factors relevant to be gone into for
considering the bail application were heavily loaded in favour
of grant of bail to accused Ram Pal.
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We fail to understand as to how the High Court arrived at a
decision to initiate disciplinary proceedings solely based on
the
complaint, the contents of which were not believed to be
true by the High Court. If the High Court were to initiate
disciplinary proceedings based on a judicial order, there
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should have been strong grounds to suspect officer’s bona
fides and the order itself should have been actuated by malice,
bias or illegality. The appellant-officer was well within his
right to grant bail to the accused in discharge of his judicial
functions. Unlike provisions for granting bail in TADA Act or
NDPS Act, there was no statutory bar in granting bail to the
accused in this case.A Sessions Judge was competent to grant
bail and if any disciplinary proceedings are initiated against
the officer for passing such an order, it would adversely affect
the morale of subordinate judiciary and no officer would be
able to exercise this power freely and independently.
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The fact that it was a case of daylight murder wherein two
persons died, is not adequate to hold that the accused were
not entitled to bail at all. Passing order on a bail application
is a matter of discretion which is exercised by a judicial officer
with utmost responsibility. When a co-accused had been
granted bail by the High Court, the appellant cannot be said
to have passed an unjustified order granting bail, that too, to
an accused who was a student and had been in jail for more
than one year. If at all, the inspecting Judge had found
anything wrong with the order,he should have sent for the
officer and advised him to be careful in future.”
64. Hence, in light of the above judicial pronouncement, we hold
that the accused K.K. Jalia had the right to file bail
application at any
stage when undergoing imprisonment as an under-trial prisoner. The
fact that the two other co-accused had already been enlarged on bail
was a valid reason for granting bail to accused K.K. Jalia.If the High
Court was to initiate disciplinary proceedings based on a judicial order,
there should have been strong grounds to suspect appellant’s bona fides
and the order itself should have been actuated by malice, bias or illegality.
This is clearly not the case in the present matter. The appellant was
ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FOR
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competent and well within his right to grant bail to the accused in discharge
of his judicial functions.
65. This court in P.C. Joshi vs State of U.P. [(2001) 6 SCC 491]
held that:
“That there was possibility on a given set of facts to arrive at
a different conclusion is no ground to indict a judicial officer
for taking one view and that too for alleged misconduct for
that reason alone. The enquiry officer has not found any other
material, which would reflect on his reputation or integrity or
good faith or devotion to duty or that he has been actuated
by any corrupt motive. At best, he may say that the view taken
by the appellant is not proper or correct and not attribute
any motive to him which is for extraneous consideration that
he had acted in that manner. If in every case where an order
of a subordinate court is found to be faulty a disciplinary
action were to be initiated, the confidence of the subordinate
judiciary will be shaken and the officers will be in constant
fear of writing a judgment so as not to face a disciplinary
enquiry and thus judicial officers cannot act independently
or fearlessly. Indeed the words of caution are given in K.K.
Dhawan case [(1993) 2 SCC 56 : 1993 SCC (L&S) 325 :
(1993) 24 ATC 1] and A.N. Saxena case [(1992) 3 SCC 124 :
1992 SCC (L&S) 861 : (1992) 21 ATC 670] that merely
because the order is wrong or the action taken could have
been different does not warrant initiation of
disciplinary
proceedings against the judicial officer. In spite of such
caution, it is unfortunate that the High Court has chosen to
initiate disciplinary proceedings against the appellant in this
case.”
66. We concur with the view of this Court in the aforesaid case
that merely because a wrong order has been passed by the appellant or
the action taken by him could have been different, this does not warrant
initiation of disciplinary proceedings against the judicial officer.
67. This court in Krishna Prasad Verma vs State of Bihar
[(2019) 10 SCC 640], while setting aside the High Court’s order,
quashed the charges against the officer therein and granted him
consequential benefits while holding that:
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“No doubt, there has to be zero tolerance for corruption and
if there are allegations of corruption, misconduct or of acts
unbecoming of a judicial officer, these must be dealt with
strictly. However, if wrong orders are passed, that should not
lead to disciplinary actions unless there is evidence that the
wrong orders have been passed for extraneous reasons and
not because of the reasons on the file.
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The main ground to hold the appellant guilty of the first charge
is that the appellant did not take notice of the orders of the
High Court whereby the High Court had rejected the bail
application of one of the accused vide order dated 26-11-
2001 [Shivnath Rai v. State of Bihar, Criminal Misc. No. 30563
of 2001, order dated 26-11-2001 (Pat)] . It would be pertinent
to mention that the High Court itself observed that after
framing of charges, if the non-official witnesses are not
examined, the prayer for bail could be removed, but after
moving the lower court first. The officer may have been guilty
of negligence in the sense that he did not carefully go through
the case file and did not take notice of the order of the High
Court which was on his file. This negligence cannot be treated
to be misconduct. It would be pertinent to mention that the
enquiry officer has not found that there was any extraneous
reason for granting bail. The enquiry officer virtually sat as
a court of appeal picking holes in the order granting bail.
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We would, however, like to make it clear that we are in no
manner indicating that if a judicial officer passes a wrong
order, then no action is to be taken. In case a judicial officer
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passes orders which are against settled legal norms but there
is no allegation of any extraneous influences leading to the
passing of such orders then the appropriate action which the
High Court should take is to record such material on the
administrative side and place it on the service record of the
judicial officer concerned. These matters can be taken into
consideration while considering career progression of the
judicial officer concerned. Once note of the wrong order is
taken and they form part of the service record these can be
taken into consideration to deny selection grade, promotion,
etc., and in case there is a continuous flow of wrong or illegal
orders then the proper action would be to compulsorily retire
the judicial officer, in accordance with the Rules. We again
reiterate that unless there are clear-cut allegations of
misconduct, extraneous influences, gratification of any kind,
etc., disciplinary proceedings should not be initiated merely
on the basis that a wrong order has been passed by the
judicial officer or merely on the ground that the judicial order
is incorrect.”
(emphasis supplied)
68. Furthermore, this Court has recently held in Sadhna
Chaudhary (supra) that:
“20. We are also not oblivious to the fact that mere suspicion
cannot constitute ‘misconduct’. Any ‘probability’ of
misconduct needs to be supported with oral or documentary
material, even though the standard of proof would obviously
not be at par with that in a criminal trial. While applying
these yardsticks, the High Court is expected to consider the
existence of differing standards and approaches amongst
different judges. There are innumerable instances of judicial
officers who are liberal in granting bail, awarding
compensation under MACT or for acquired land, backwages
to workmen or mandatory compensation in other cases of
tortious liabilities. Such relief-oriented judicial approaches
cannot by themselves be grounds to cast aspersions on the
honesty and integrity of an officer.
21. Furthermore, one cannot overlook the reality of ours being
a country wherein countless complainants are readily
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available without hesitation to tarnish the image of the
judiciary, often for more pennies or even cheap momentary
popularity. Sometimes a few disgruntled members of the Bar
also join hands with them, and officers of the subordinate
judiciary are usually the easiest target. It is, therefore, the
duty of High Courts to extend their protective umbrella and
ensure that upright and straightforward judicial officers are
not subjected to unmerited onslaught.
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24. However, the facts of the present case are distinct. This
court, in fact, entered into the merits of one of the allegedly
erroneous orders. Not only was the judgement affirmed, but
rather the compensation was further enhanced. It hence can
no longer be stated that the appellant’s order was wrong in
conclusion. This fact is significant as it establishes that the
increase in compensation by the appellant was not abhorrent.
25. Had the charge been specific that the decision-making
process was effectuated by extraneous considerations, then
the correctness of the appellant’s conclusions probably would
not have mattered as much. However, a perusal of the charges
extracted above makes it evident that the exclusive cause of
inquiry, inference of dishonesty as well as imposition of penalty
was only on the basis of the conclusion of enhancement of
compensation. Given how the challenge to one of those two
orders had been turned down at the High Court stage, and
the other was both affirmed and
furthered in principle by this
court, the very foundation of the charges no longer survives.
26. We can find no fault in the proposition that the end result
of adjudication does not matter, and only whether the
delinquent officer had taken illegal gratification (monetary
or otherwise) or had been swayed by extraneous
considerations while conducting the process is of relevance.
Indeed, many-a-times it is possible that a judicial officer can
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indulge in conduct unbecoming of his office whilst at the same
time giving an order, the result of which is legally sound. Such
unbecoming conduct can either be in the form of a judge
taking a case out of turn, delaying hearings through
adjournments, seeking bribes to give parties their legal dues
etc. None of these necessarily need to affect the outcome.
However, importantly in the present case, a necessarily need
to affect the outcome. However, importantly in the present
case,a perusal of the chargesheet shows that no such
allegation of the process having been vitiated has been made
against the appellant.
27. There is no explicit mention of any extraneous
consideration being actually received or of unbecoming
conduct on the part of the appellant. Instead, the very basis
of the finding of ‘misbehaviour’ is the end result itself, which
as per the High Court was so shocking that it gave rise to a
natural suspicion as to the integrity and honesty of the
appellant. Although this might be right in a vacuum, however,
given how the end result itself has been untouched by superior
courts and instead in one of the two cases, the compensation
only increased, no such inference can be made. Thus, the
entire case against the appellant collapses like a house of
cards.”
Conclusion
28. In light of the above discussion, the appeal is allowed.
The judgment of the High Court is set aside and the writ
petition filed by the appellant is
allowed. The order of dismissal
dated 17-1-2006 passed by Respondent 1 is set aside, the
appellant’s prayers for reinstatement with consequential
benefits including retiral benefits, is accepted. No order as to
costs.
(emphasis supplied)
69. In light of the above judicial pronouncements, we hold that the
appellant may have been guilty of negligence in the sense that he did not
carefully go through the case file and did not take notice of the order of
the High Court which was on his file. This negligence cannot be treated
to be misconduct. Moreover, the enquiry officer virtually sat as a court
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of appeal picking holes in the order granting bail, even when he could not
find any extraneous reason for the grant of the bail order. Notably, in the
present case, there was not a string of continuous illegal orders that
have been alleged to be passed for extraneous considerations. The present
case revolves only around a single bail order, and that too was passed
with competent jurisdiction. As has been rightly held by this Court in
Sadhna Chaudhary (supra), mere suspicion cannot constitute
“misconduct”. Any ‘probability’ of misconduct needs to be supported
with oral or documentary material, and this requirement has not been
fulfilled in the present case. These observations assume importance in
light of the specific fact that there was no allegation of illegal gratification
against the present appellant. As has been rightly held by this Court,
such relief-oriented judicial approaches cannot by themselves be grounds
to cast aspersions on the honesty and integrity of an officer.
70. Additionally, the High Court in the impugned order has
erroneously stated that there must have been some oral complaint which
resulted in the explanation being sought by the Respondent. This, it is
held, was based on conjectures and is in stark contravention to the
proposition laid down in the above referred judgements, especially given
the fact that the High Court had itself recorded that there was no written
complaint against the appellant. Lastly, reliance placed by the High
Court
in the impugned order on Director Aryabhatta research Institute of
Observational Sciences (supra) is misconceived as the facts of the
said case are distinguishable on facts since in the said case, the enquiry
was only a preliminary enquiry prior to the initiation of a formal inquiry
and furthermore, there were many letters of the management regarding
unsatisfactory performance, of which the delinquent officer was intimated
in advance.
71. To conclude, we are of the firm view that in the present case
there was no material to showcase unsatisfactory performance of the
appellant in terms of requirement under Rule 45 and 46 of the RJS Rules,
2010. Moreover, the appellant’s discharge was not simpliciter, as claimed
by the respondent. The non-communication of the ACRs to the appellant
has been proved to be arbitrary and since the respondent choose to hold
an enquiry into appellant’s alleged misconduct, the termination of his
service is by way of punishmentbecause it puts a stigma on his
competence and thus affects his future career. In such a case, the
appellant would be entitled to the protection of Article 311(2) of the
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Constitution. Moreover, the adverse comments in the ACR for the year
2015 could not have been the basis on which the appellant was discharged
from service. The appellant was never granted an opportunity to improve
and there was no intimation to him about his performance being
unsatisfactory. Importantly, no verifiable complaint was filed against the
appellant that could form the basis of the disciplinary proceeding against
him. After perusing all the relevant record, we hold that the appellant
was competent to pass the bail order dated 27.04.2015 and that the
Respondent has not been able to prove the presence of any extraneous
consideration or ulterior motive on the part of the appellant. It should
also be highlighted here that neither the bail order dated 27.04.2015 was
ever challenged by the State before any Court of law, nor was any
complaint received against the appellant regarding the said bail order.
This is not the case where there are strong grounds to suspect the
appellant’s bona fides. Even if appellant’s act is considered to be negligent,
it cannot be treated as “misconduct”.
72. Accordingly, the Appeal is Allowed and the impugned order of
the High Court dated 21.10.2019 is set aside and the discharge order
dated 27.01.2016 is quashed. Keeping in view that the appellant has not
worked as judicial officer after he was discharged, we direct that while
the appellant be reinstated with all consequential
benefits including
continuity of service and seniority, but will be entitled to be paid only
50% backwages, which may be paid within a period of four months
from today.
Bibhuti Bhushan Bose
Appeal allowed.
(Assisted by : Shubhanshu Das, LCRA)