case of discharge simpliciter and during the probationary period,
there is a reference made to a discreet inquiry. The discreet
inquiry revealed that the petitioner was found under the
influence of alcohol while residing as a trainee Judge at the
Academy. There was a complaint or a confidential report
received from the Joint Director of the said Academy bringing to
the notice of the Registrar General of this Court this incident.
The incident is stated to have occurred twice, on 2912012 and
522012. There was a discreet inquiry with the colleagues and
the staff and thereafter this report was forwarded. This report
was considered by the Administrative Committee of Judges on
15-2-2012. Thereafter, at a further meeting held on
20-3-2012, a decision was taken to discharge the petitioner from
judicial service. That decision was communicated to the Law and
Judiciary Department of the State of Maharashtra, whereupon
the impugned order was served on the petitioner.
None of the decisions citied by Mr. Arjunwadkar lay
down any absolute principle. None of the decisions of the
Hon'ble Supreme Court hold that merely because some
preliminary or discreet inquiry is held while judging for
assessing the performance and in an overall manner of a
probationer, that the foundation of the order ultimately passed
of discharging him from service is a misconduct. It is always
open for the authorities while assessing and considering the
performance in an overall manner to take note of some event
and incident. Merely because they take note of it or called for a
report about the same from the superior of the person like the
petitioner, does not mean that they desire to hold a fullfledged
inquiry or there is a decision to terminate the services on
account of some misconduct. The decisions also refer to cases
where inquiries were commenced under the relevant Service
Rules but they were not taken to their logical conclusion and
end. During the pendency of the same, a probationer was
discharged for unsatisfactory performance. Thus, the law
enables assessment of the performance and conduct of a Judicial
Officer. All the more if an overall assessment reveals that the
probationer is unsuitable for continuation in service any further,
then, an order of discharge simpliciter can be passed. Precisely,
such is the nature of the impugned order. The order does not
refer to any misconduct. There is no need to go behind it or the
allegations that the petitioner makes in the affidavit in rejoinder.
We do not think that the record indicates, even from the
information generated by the petitioner under the Right to
Information Act, that the foundation or basis for the impugned
order is the petitioner's alleged misconduct or misbehaviour at
the Academy. His performance is assessed in an overall manner
for finding out whether he is suitable to be continued in service.
He was appointed on 28-12-2011. A periodical assessment of his
performance could have always been undertaken and the Rules
permit this course of action. Therefore, during the probationary
period, in March 2012, the petitioner's performance was
assessed and an occasion for the same could be some complaint
or incident which had occurred during the course of the training
at the Academy. That by itself and without anything more does
not mean that the petitioner has been terminated for some
misconduct and which required an inquiry to precede the same.
There was no need for an inquiry, much less a fullfledged
Departmental one. That was not necessitated at all. This was a
case of assessment of the performance of a Judicial Officer who
is a probationer and finding him unsuitable for continuation in
service any further discharging him from service. It is a
termination simpliciter.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2733 OF 2013
Gurunath Dinkar Mane,
V
State of Maharashtra
CORAM: S.C. DHARMADHIKARI &
B.P. COLABAWALLA, JJ.
DATE : SEPTEMBER 23, 2016
Citation: 2016(6) ALLMR 545
1. Rule. The respondents through their Advocates
waive service. By consent, rule is made returnable forthwith and
the writ petition is taken up for hearing and final disposal.
2. By this petition under Article 226 of the Constitution
of India, the petitioner challenges the order passed by
respondent No.1State, dated 1752012, discharging him from
judicial services.
3. The petitioner completed his Five Years Law Degree
Course in the year 2001. He states that he comes from a middleclass
agriculturist family. After obtaining the Law Degree, he
applied for issuance of Sanad to practice as an Advocate. That
was issued by the Bar Council of Maharashtra and Goa on
472001. The petitioner submits that he has no legal
background. He started practice at Kolhapur. After having
gained sufficient experience, in the year 2010 the petitioner
applied for being appointed as a Civil Judge, Junior Division and
Judicial Magistrate, First Class. The petitioner was selected for
the said post. An appointment order was issued on 28122011.
That order refers to a Notification dated 23122011. The
petitioner was directed to report at the Maharashtra Judicial
Academy & Indian Mediation Centre & Training Institute at
Uttan, District Thane. The training course was to commence on
912012. The petitioner reported for the said training on the
day he was given charge as an Extra Joint Civil Judge, Junior
Division and Judicial Magistrate, First Class, Satara. The
duration of the training was 16 weeks. It was to end on
2842012. The petitioner's case is that, the course is residential
inasmuch as the trainees are required to stay and reside in the
bachelor's accommodation. The petitioner successfully
completed the training course and in that regard reliance is
placed on the Certificate issued on 2842012 (page 27 of the
paperbook). It is then submitted that the petitioner did not in
any manner misconduct or misbehave during this training.
There was no complaint from any colleague or faculty member,
much less the Directors at the Judicial Academy.
4. The petitioner thereafter reported back to the post to
which he was appointed at Satara. The petitioner was working
sincerely, but on 2852012 he received a letter posted on
2352012, issued by the Registrar General of respondent No.2,
informing him that as per the Notification dated 1752012, a
copy of which was annexed to the said letter, the petitioner has
been discharged from judicial service.
5. Thereafter, the petitioner made a representation,
copy of which is at page 32 of the paperbook. The petitioner
stated and specifically in this representation that he was selected
because he was eligible, qualified and suitable. He was not
communicated any remark or any adverse comment while he
was undergoing training. None could, therefore, claim to have
any grievance about his character and conduct. It is in these
circumstances that the order discharging him from judicial
service requires to be withdrawn and set aside. That is a drastic
measure which adversely affects his career. His family also
suffers. The petitioner was expecting a favourable response to
this representation dated 2262012. However, finding that
there was no response, he proceeded to file this writ petition on
3012013.
6. After service of a copy of this petition on the High
Court Administration, a reply affidavit has been filed. The reply
affidavit denies all the allegations. In the reply affidavit it was
pointed out that the petitioner was a probationary officer. He
was discharged during the period of probation. He was
discharged by relying on Rule 14 of the Maharashtra Judicial
Service Rules, 2008.
7. Without prejudice to the contention that this is a
case of discharge simpliciter and during the probationary period,
there is a reference made to a discreet inquiry. The discreet
inquiry revealed that the petitioner was found under the
influence of alcohol while residing as a trainee Judge at the
Academy. There was a complaint or a confidential report
received from the Joint Director of the said Academy bringing to
the notice of the Registrar General of this Court this incident.
The incident is stated to have occurred twice, on 2912012 and
522012. There was a discreet inquiry with the colleagues and
the staff and thereafter this report was forwarded. This report
was considered by the Administrative Committee of Judges on
1522012. Thereafter, at a further meeting held on
2032012, a decision was taken to discharge the petitioner from
judicial service. That decision was communicated to the Law and
Judiciary Department of the State of Maharashtra, whereupon
the impugned order was served on the petitioner.
8. The petitioner has filed a rejoinder affidavit in which
the case set up is that, the affidavit in reply itself would indicate
as to how this is not a case of discharge simpliciter. It is
submitted that even a probationer, if discharged or his services
are terminated for alleged misconduct, then, the law requires
the Administration to hold an inquiry at which full opportunity
to defend has to be granted to a probationer or temporary
employee as well. Once there is an adverse report received about
the conduct of the petitioner, as is admitted in the affidavit in
reply, then, nonadherence to this principle would vitiate the
impugned order. On that ground alone, the petition must
succeed.
9. A justification is also provided and that is stated to
be the true event. That justification is that while at the Academy,
it is only the petitioner who was continuously complaining about
the quality of the food which was served at the canteen. The
food was not at all satisfactory. Its quality was poor. There was
no cleanliness and hygiene. A balanced square meal was not
provided. At times the food was stale. It is in these
circumstances that the petitioner, firstly, complained to the
Manager of the canteen and he replied that other candidates are
satisfied with his service and, therefore, the petitioner should
not dare to question him. So the matter was taken up with the
Joint Director and the petitioner was insulted. The Joint
Director, as also the Additional Director and the Administrative
Officer ganged up against the petitioner and brought about a
situation where they would ruin his career by submitting an
adverse report. It is that design which is achieved. That is how
the petitioner complains that he was harassed and treated with
cruelty by these three officers at the Academy for having
complained about the poor quality of the food. This is why this
termination is nothing but victimisation. It in any event casts a
slur on the petitioner's character.
10. It is on this material that we have heard
Mr. Arjunwadkar, appearing for the petitioner, and Mr. Datar,
appearing for respondent No.2. Mr. Arjunwadkar tenders
compilation of documents. Mr. Arjunwadkar complains that the
original record may be perused so as to verify this information,
which is provided to the petitioner upon an application made
invoking the Right to Information Act, 2005. This would reveal
as to how the inquiry was factually held. It could not be termed
as secret or discreet. There was an inquiry behind the back of
the petitioner and relying on the report of that inquiry the order
has been passed. Thus, Mr. Arjunwadkar emphasizes that the
foundation or basis of the order is the alleged misconduct of the
petitioner. The misconduct has also been elaborated inasmuch
as the petitioner is alleged to have indulged in disorderly and
indecent behaviour by consuming alcohol at the training
Academy Campus. That was an act which does not befit a
Judicial Officer or a person like the petitioner who is trained by
the Administration to be a Judge. That, according to the report,
would be a wrong example for others. If this is how the
petitioner has been proceeded against, by relying upon
statements of some colleagues/officials, the staff of the canteen,
the watchmen, etc., then, this is a clear case of a termination
based on misconduct. This casts a slur on the petitioner's
reputation and character. For these reasons, the impugned order
deserves to be set aside.
11. Mr. Arjunwadkar also submits that timetotime the
Hon'ble Supreme Court has held that it is the duty of the High
Court to guide the Judicial fraternity since the District Judiciary
looks upon the High Court as a parent or a father for guidance.
Therefore, even if there is some incident or a mistake, which
occurs not on account of any deliberate act but because of a
given social background, then, it is the duty of the High Court to
pardon such Judicial Officer and give him an opportunity to
correct himself. In other words, action or warning could have
served the purpose and such Officer should have been directed
to mend his ways or at best could have been kept under a watch
for some time. Passing a drastic order of terminating his services
and relying on Rule 14, when the foundation or basis for the
same is alleged misconduct, therefore, runs contrary to the
principles of law laid down in several decisions of the Supreme
Court.
12. Reliance is placed on the Judgments of the Hon'ble
Supreme Court in the cases of Shamsher Singh Vs. State of
Punjab, reported in AIR 1974 SC 2192 = (1974) 2 SCC 831,
Ishwar Chand Jain Vs. High Court of Punjab & Haryana,
reported in AIR 1988 SC 1395 and Registrar General, High
Court of Gujarat & Another Vs. Jayshree Chamanlal
Buddhbhatti, reported in (2013) 16 SCC 59.
13. Mr. Datar, appearing for the second respondent and
the learned AGP support the impugned order. It is submitted
that merely because some inquiry is held discreetly does not
mean that the foundation or basis for the termination is
misconduct or misbehaviour. On examination of the record in an
overall manner it was held that the petitioner is unfit for
continuance in service. It is a termination simpliciter of a
probationer during his probationary period. That while assessing
his performance and considering his suitability for continuance
in the post if it is found that the probationer has not rendered
satisfactory service, then, a termination order can be issued. It is
nothing but a discharge simpliciter for an unsatisfactory
performance. An overall assessment can always be made with
regard to the petitioner's performance and his character. In these
circumstances, it is submitted that the petition has no merit and
it should be dismissed.
14. With the assistance of the learned counsel appearing
for both sides, we have perused the writ petition, all annexures
thereto and the affidavits placed on record. We have carefully
considered the submissions of Mr. Arjunwadkar as, according to
him, it is a question of the petitioner's career. We have also
perused the relevant decisions cited before us.
15. The facts are not in dispute. Further, there is no
challenge to the power of the Administration to discharge a
person like the petitioner from judicial service during the
probationary period. Admittedly, the petitioner was appointed
on probation and the duration of two years had not expired.
Admittedly, upon the appointment, the petitioner was sent for
training at the Judicial Academy in terms of the Judgment and
Order of the Hon'ble Supreme Court of India. A training
academy is set up so as to train the officers recently and newly
appointed. That would enable them to discharge their services to
the satisfaction of the litigants and all concerned. Eventually,
they are the part of the judicial service. Judicial service, as the
Hon'ble Supreme Court of India timeandagain clarifies, is part
and parcel of a sovereign and regal function of the State.
Administration of justice, maintenance of law and order and
defence of the country are sovereign and regal functions. If
Judges and Advocates are part and parcel of such regal function
and get an opportunity to serve the public by joining the services
of this nature, then, the least that is expected of them is that
their conduct and behaviour befits the service in which they are
appointed. They are Judges and people look upon Judges with
great respect and regard. Eventually, Court of law is the last
resort for the common man. Wherever and whenever he suffers
injustice or has a serious grievance against the opponent or
somebody trampling and unjustifiably taking away his legal
rights, then, he has no recourse but to approach the nearest
Competent Court. It is that Court which is expected to take up
his cause and by exhibiting a genuine and bona fide concern.
The litigant deserves a fair and just trial, even if the ultimate
conclusion or decision is rendered against him. Such is the
expectation from the Judicial Officer. He is, therefore, expected
to be responsible, sensitive and of an exemplary character. It is
not as if the petitioner is novice to the field of law. The
petitioner has behind him, and according to him, nine years and
more experience as a practising Advocate. Even a practising
Advocate is not expected to behave or conduct himself in an
indecent or disorderly manner. Therefore, the petitioner and
Advocates are well aware that the Society looks upon them as
one who are part and parcel of the sovereign and regal function
discharged by the State. Even as Advocates, they have to ensure
that their performance is one of highest standard and does not
fall below it. We do not agree with Mr. Arjunwadkar that
persons with an agricultural or rural background lack the basic
moral values and are unaware of the norms of civilised conduct.
People residing in rural areas are also well informed and
educated. Even if they do not attend a school or college, they are
sensible and sensitive enough to understand as to how they must
conduct themselves. It is preposterous to suggest that rustic
villagers are necessarily uncouth and uncivilised. That is a
sweeping and irresponsible remark. It is not that only rich and
prosperous are cultured and civilised. Whether, rich or poor,
everybody understands and is aware of the norms of orderly and
decent conduct to be followed at a place like the Judicial
Academy. Else, the GradeIV staff at the Academy and coming
from this very background would have freely indulged in
drinking and disorderly conduct.
16. It is not as if we are proceeding on the lines that the
termination was on account of misconduct. We are making
merely a reference to the submissions of Mr. Arjunwadkar and
which are emphasized throughout. We are astonished that a
grievance has been made by the petitioner in his affidavit in
rejoinder about a trio at the Academy harassing and victimising
him. The earliest opportunity at which the petitioner could have
raised this issue was when he made a representation to this
Court. In the representation, he makes no grievance at all of the
alleged incident whereat he is supposed to have complained
about the quality of food. At that time if he was admonished by
anybody, including the Joint Director, etc., he could have lodged
a complaint. It is said that it is too much to expect from a lower
level Judicial Officer that he would not take up issues with the
High Court Administration. He would not dare to, at a stage
where he is placed in life. If the petitioner finds that he was
being served food of poor quality and had complained to the
Joint Director and others, then, that incident with details would
have found place in his representation. Nothing of this sort is
referred. All contentions which are raised now in the affidavit in
rejoinder are but an afterthought. There are no specific details,
much less charges or allegations which would enable the Court
to even now consider and sympathetically the grievance of the
petitioner that he has been victimised and that the impugned
order casts a stigma or slur on his character.
17. None of the decisions citied by Mr. Arjunwadkar lay
down any absolute principle. None of the decisions of the
Hon'ble Supreme Court hold that merely because some
preliminary or discreet inquiry is held while judging for
assessing the performance and in an overall manner of a
probationer, that the foundation of the order ultimately passed
of discharging him from service is a misconduct. It is always
open for the authorities while assessing and considering the
performance in an overall manner to take note of some event
and incident. Merely because they take note of it or called for a
report about the same from the superior of the person like the
petitioner, does not mean that they desire to hold a fullfledged
inquiry or there is a decision to terminate the services on
account of some misconduct. The decisions also refer to cases
where inquiries were commenced under the relevant Service
Rules but they were not taken to their logical conclusion and
end. During the pendency of the same, a probationer was
discharged for unsatisfactory performance. Thus, the law
enables assessment of the performance and conduct of a Judicial
Officer. All the more if an overall assessment reveals that the
probationer is unsuitable for continuation in service any further,
then, an order of discharge simpliciter can be passed. Precisely,
such is the nature of the impugned order. The order does not
refer to any misconduct. There is no need to go behind it or the
allegations that the petitioner makes in the affidavit in rejoinder.
We do not think that the record indicates, even from the
information generated by the petitioner under the Right to
Information Act, that the foundation or basis for the impugned
order is the petitioner's alleged misconduct or misbehaviour at
the Academy. His performance is assessed in an overall manner
for finding out whether he is suitable to be continued in service.
He was appointed on 28122011. A periodical assessment of his
performance could have always been undertaken and the Rules
permit this course of action. Therefore, during the probationary
period, in March 2012, the petitioner's performance was
assessed and an occasion for the same could be some complaint
or incident which had occurred during the course of the training
at the Academy. That by itself and without anything more does
not mean that the petitioner has been terminated for some
misconduct and which required an inquiry to precede the same.
There was no need for an inquiry, much less a fullfledged
Departmental one. That was not necessitated at all. This was a
case of assessment of the performance of a Judicial Officer who
is a probationer and finding him unsuitable for continuation in
service any further discharging him from service. It is a
termination simpliciter.
18. Once we reach the above conclusion, legal principles
as laid down by the decisions relied upon by Mr. Arjunwadkar
about which there can never be any quarrel or dispute but their
applicability to the facts and circumstances of the present case,
is not established. They are clearly distinguishable. In the case of
Jayshree Chamanlal Buddhbhatti (supra) which is the last in
point of time, according to Mr. Arjunwadkar, the performance of
the Judicial Officer was exemplary. When nothing was found
and in the possession of the Registrar (Vigilance), there was a
discreet inquiry and eventually, it was established that being a
lady officer she was in a way victimised. Her superiors did not
treat her fairly and impartially and that is how the Hon'ble
Supreme Court and the High Court interfered with the order of
termination or discharge and directed reinstatement of the
Judicial Officer in service. Having found that such is not the case
before us, we are unable to agree with Mr. Arjunwadkar.
19. For the reasons aforesaid, the writ petition fails. It is
dismissed. The rule is discharged.
(B.P. COLABAWALLA, J.) (S.C. DHARMADHIKARI, J.)
No comments:
Post a Comment