ABHAY JAIN VS THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2029 OF 2022

[ARISING OUT OF SPECIAL LEAVE PETITION [C] NO.6107 OF 2020]

ABHAY JAIN …..APPELLANT

VERSUS

THE HIGH COURT OF JUDICATURE

FOR RAJASTHAN AND ANR. ……RESPONDENTS

J U D G M E N T

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 made from 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, AntiCorruption Department (ACD), Bharatpur, on which post

he joined on 25.02.2015.

4. It was during his posting as Sessions Judge, AntiCorruption 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

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 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 16.04.2015 to 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.

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, without affording 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 dated 27.01.2016, 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 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.

……..

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.

……..

The High Court at the time of considering the

case of the petitioner for conformation must

have come to the conclusion that it was not

interested to ascertain the truth of allegations

levelled against the petitioner and opted to pass

a simpliciter order of dispensing with the

services of the petitioner. 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 the petitioner, who was on a

probation, did not require to be confirmed as he

was unlikely to prove to be a 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.

……..

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 the petitioner.”

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.

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, 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 selfcontradictory 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.

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 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 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 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 that the 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 on this 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. Hansaria concluded 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.

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;

(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

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.

(2) A person appointed to the service in the

cadre of Senior Civil Judge 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.

(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;

(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 is unable

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 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 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.

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

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 LLJ 544 SC. 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 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 those

cases 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.

……..

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 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 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 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 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

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.

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 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 11.03.2015 in 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 11.03.2015 in 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 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.

……..

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.

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.

.……..

……..

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 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.

……..

…….

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.

……..

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 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.

……….

……...

………

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 coaccused 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

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:

“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.

….…..

……...

………

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.

…….

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 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 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.

…….

……

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 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 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 punishment because 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 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.

......................................J.

[UDAY UMESH LALIT]

......................................J.

[VINEET SARAN]

New Delhi

March 15, 2022.

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ABHAY JAIN VS THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

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