When Judge on probation can be discharged from service ?

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

explanation was called for from the Petitioner and it is on the basis of the
overall assessment of the material on record that the decision was arrived at by
the Probation Committee to discharge the Petitioner from service.  
30 At the cost of repetition it would have to be said that the Apex
Court has in terms held that having regard to the allegation or suspicion of
misconduct that the master/employer may have against the probationer, the
employer may not choose to hold an enquiry to discharge the probationer
whom the employer is not desirous of keeping. (See Gujarat Steel Tubes Ltd.
v/s. Gujarat Steel Tubes Mazdoor Sabha).
It is also trite that the enquiry conducted to go into the suitability
of a probationer cannot attract the provisions of Article 311 of the Constitution
of India.   Hence even assuming that the tenor of the letters of the learned
Principal   District   Judge   would   amount   to   casting   aspersions   or   suspicion
against the Petitioner, the administration was entitled to take a decision to
discharge the Petitioner without choosing to go into the allegations.  Since the
Petitioner was not found to be  suitable  for  continuation  by the  Probation
Committee, the contention of the learned counsel for the Petitioner founded on
the basis of the letters of the learned Principal District Judge that the Petitioner
is   found   to   be   undesirable   and   therefore   amounts   to   a   stigma   cannot   be
accepted. We therefore conclude that the order passed against the Petitioner is

a simple order of discharge, on being found not suitable for continuation, and
is therefore not stigmatic.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2470 OF 2014 

Mr. Girish Chandrakant Gosavi  Vs  The Chief Secretary


CORAM : R. M. SAVANT & 
SARANG V. KOTWAL,  JJ.

Pronounced on :­ 03rd May 2018
Citation: 2018(6) MHLJ 568

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Whether court can lift veil In Case Of Termination Of employee on probation?

In the instant case as we have stated already hereinbefore that though the impugned order was made under the camouflage or cloak of an order of termination simpliciter according to the terms of the employment, yet considering the attendant circumstances which are the basis of the said order of termination, there is no iota of doubt in inferring that the order of termination had been made by way of punishment on the ground of misconduct and adverse entry in service record without affording any reasonable opportunity of hearing to the petitioners whose services are terminated and without complying with the mandatory procedure laid down in Article 311(2) of the Constitution of India.

The position is now well settled on a conspectuous of the decisions referred to hereinbefore that the mere form of the order is not sufficient to hold that the order of termination was innocuous and the order of termination of the services of a probationer or of an ad-hoc appointee is a termination simpliciter in accordance with the terms of the appointment without attaching any stigma to the employee concerned. It is the substance of the order i.e. the attending circumstances as well as the basis of the order that have to be taken into consideration. In other words, when an allegation is made by the employee assailing the order of termination as one based on misconduct, though couched in innocuous terms, it is incumbent on the court to lift the veil and to see the real circumstances as well as the basis and foundation of the order complained of. In other words, the Court, in such case, will lift the veil and will see whether the order was made on the ground of misconduct inefficiency or not.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 230 and 231 of 1982

Decided On: 07.05.1986

Jarnail Singh and Ors.
Vs.
State of Punjab and Ors.

Coram:
A.N. Sen and B.C. Ray, JJ.

 citations: 1986 AIR 1626, 1986 SCR (2)1022

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Whether probationary judicial officer can be removed from service on ground he was found under influence of alcohol in Academy?

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
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

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Wrongful termination of employee from service will be set aside if there is violation of principles of natural justice

 In the case at hand, it is clear as crystal that on the
basis of a complaint made by a member of the Legislative
Assembly, an enquiry was directed to be held. It has been
innocuously stated that the complaint was relating to illegal
selection on the ground that the appellant did not possess
the requisite qualification and was appointed to the post of
Chest Therapist. The report that was submitted by the
Cabinet (Vigilance) Department eloquently states about the
conduct and character of the appellant. The stand taken in
the counter affidavit indicates about the behaviour of the
appellant. It is also noticeable that the authorities after
issuing the notice to show cause and obtaining a reply from
the delinquent employee did not supply the documents. Be
that as it may, no regular enquiry was held and he was
visited with the punishment of dismissal. It is well settled in
law, if an ex parte enquiry is held behind the back of the
delinquent employee and there are stigmatic remarks that
would constitute foundation and not the motive. Therefore,
when the enquiry commenced and thereafter without
framing of charges or without holding an enquiry the
delinquent employee was dismissed, definitely, there is clear
violation of principles of natural justice. It cannot be
equated with a situation of dropping of the disciplinary
proceedings and passing an order of termination simpliciter.
In that event it would have been motive and could not have
travelled to the realm of the foundation. We may hasten to
add that had the appellant would have been visited with
minor punishment, the matter possibly would have been
totally different. That is not the case. It is also not the case
that he was terminated solely on the ground of earlier
punishment. In fact, he continued in service thereafter. As
the report would reflect that there are many an allegation
subsequent to the imposition of punishment relating to his
conduct, misbehaviour and disobedience. The Vigilance
Department, in fact, had conducted an enquiry behind the
back of the appellant. The stigma has been cast in view of
the report received by the Central Vigilance Commission
which was ex parte and when that was put to the delinquent
employee, holding of a regular enquiry was imperative. It
was not an enquiry only to find out that he did not possess
the requisite qualification. Had that been so, the matter
would have been altogether different. The allegations in the
report of the Vigilance Department pertain to his
misbehaviour, conduct and his dealing with the officers and
the same also gets accentuated by the stand taken in the
counter affidavit. Thus, by no stretch of imagination it can
be accepted that it is termination simpliciter. The Division
Bench has expressed the view that no departmental enquiry
was required to be held as it was only an enquiry to find out
the necessary qualification for the post of Chest Therapist.
Had the factual score been so, the said analysis would have
been treated as correct, but unfortunately the exposition of
factual matrix is absolutely different. Under such
circumstances, it is extremely difficult to concur with the
view expressed by the Division Bench.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8662 of 2015
(Arising out of S.L.P.(C) NO.8450 OF 2012)
Ratnesh Kumar Choudhary ... Appellant
 Versus
Indira Gandhi Institute of Medical
Sciences, Patna, Bihar and Others ... Respondent
Citation;2015 ALLSCR3681
Dipak Misra, J.
Dated;October 15, 2015

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When Judicial officer can be removed from service during probation period?

 Mr.Anturkar does not dispute this legal position but
would submit that the order impugned in the present case is
founded on misconduct.  His submission is that in a bold and
highlighted portion of the ACR of the Petitioner, it is stated that
there   are   complaints   about   her  integrity   as   well.     There   is,
according to Mr.Anturkar, a complaint that the Petitioner has
not   pronounced   the   judgments   after  dictating   them   but   has
pronounced them without dictation.  It is in these circumstances
that   he   would   submit   that   the   order   is   not   of   discharge

simplicitor but on account of serious misconduct and which can
be established and proved only after a regular inquiry.   That
mandates an opportunity being given to the party like Petitioner
and before being terminated/discharged from service.   It is in
these circumstances that he would submit that the impugned
order is required to be quashed and set aside.  We are unable to
agree with Mr.Anturkar.  The observations of the Principal Judge
of Bombay City Civil and Sessions Court would have to be read
as a whole.   They refer to the criminal judgments and civil
judgments.     If   there   are   no   material   defects   in   the   civil
judgments and that is why the argument is that the foundation
of the order is a misconduct or complaint about integrity or of
pronouncing the judgments without dictating the same, then, it
is not a discharge simplicitor.  However, this overlooks the fact
that   the   judgment   writing   too   suffers   from   four   basic   legal
infirmities and as highlighted.  It is in these circumstances that
merely because something is written in bold does not mean that
High Court has been influenced by that portion alone or it has
based its decision on the same without taking into consideration
the   entire   record   and   assessing   it   in   a   overall   manner.
Mr.Anturkar's   argument  overlooks   the  fact   that   the  Principal
Judge   of   the   Bombay   City   Civil   and   Sessions   Court   is   the
Reporting   Authority.     His/Her   remarks   are   placed   before   a
learned   Judge   of   this   Court   and   who   is   nominated   as   a
Guardian Judge for that particular District Court by the Hon'ble
Chief Justice of this Court.   When these remarks were placed

before   the   Hon'ble   Guardian   Judge,   he   endorsed   that   the
performance of the Petitioner is not satisfactory and hence she
may   be   discharged   from   service.     Thereafter,   a   Committee
comprising of four learned Judges two of whom are lady Judges
and earlier presiding over as Judges of the Bombay City Civil
and Sessions Court, considered the entire record.  It is not that
the remarks of the registry or the highlighted portion only has
influenced   their   conclusion.     The   Committee   in   its   ultimate
order expressed its agreement with the remarks of the learned
Guardian Judge.
19. Thereafter   these   remarks   of   the   Probation
Committee   were   placed   before   the   Administrative   Judges'
Committee and it is the Administrative Judges' Committee, of
which neither the Guardian Judge nor other two lady Judges
were a part, expressed its independent agreement and held that
the Probation Committee has rightly arrived at a conclusion that
the Petitioner ought to be discharged from service.   Nothing
from   this   record   would   indicate   that   the   order   passed   and
impugned  in  the  present  petition  is  founded  on  the  alleged
misconduct of the Petitioner or is influenced by any complaint
about lack of integrity.  An overall assessment of the Petitioner's
performance   has   been   made.     For   that   purpose,   the   service
record   has   been   perused   in   its   entirety   including   all   the
judgments delivered and their quality.   Once the Petitioner's
performance is assessed for determining whether she is suitable

for   being   confirmed   or   continued   in   Maharashtra   Judicial
Services, then, it is erroneous to term the impugned order as
casting   any   stigma   or   aspersion   on   the   character   of   the
Petitioner.     It   is   nothing   but   a   discharge   simplicitor   of   a
probationer and during the probationary period.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2814 OF 2015
Smt.Smita Rajendra Kadu,

    versus
 The State of Maharashtra.

CORAM :  S.C.DHARMADHIKARI AND
        B.P.COLABAWALLA, JJ.
DATE     :   23 December 2015
Citation; 2016 (2) MHLJ 867

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