ABHAY JAIN VS THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

ABHAY JAIN VS THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

1
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
2
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
3
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.
4
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
5
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
6
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
7
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
8
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
9
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.
10
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.
11
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.
……..
12
……..
……..
……..
……..
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
13
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
14
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
15
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.
16
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
17
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
18
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
19
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
20
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.
21
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
22
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:
23
“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
24
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
25
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
26
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
27
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:
28
Article 311(2) of the Constitution of India
“311. Dismissal, removal or reduction in rank
of persons employed in civil capacities under
the Union or a State
(2) No such person as aforesaid shall be
dismissed or removed or reduced in rank
except after an inquiry in which he has
been informed of the charges against
him and given a reasonable opportunity
of being heard in respect of those
charges; Provided that where it is
proposed after such inquiry, to impose
upon him any such penalty, such
penalty may be imposed on the basis of
the evidence adduced during such
inquiry and it shall not be necessary to
give such person any opportunity of
making representation on the penalty
proposed:
Provided further that this clause shall
not apply
(a) where a person is dismissed or
removed or reduced in rank on the
ground of conduct which has led to
his conviction on a criminal charge;
or
(b) where the authority empowered
to dismiss or remove a person or to
reduce him in rank is satisfied that
for some reason, to be recorded by
that authority in writing, it is not
29
reasonably practicable to hold such
inquiry; or
(c) where the President or the
Governor, as the case may be, is
satisfied that in the interest of the
security of the State, it is not
expedient to hold such inquiry.”
Rule 45 of the Rajasthan Judicial Service Rules, 2010
“45. Confirmation.- (1) A probationer
appointed to the service in the cadre of Civil
Judge shall be confirmed in his appointment by
the Court at the end of his initial or extended
period of probation, if the Court is satisfied that
he is fit for confirmation.
(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.”
30
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.”
31
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.”
32
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
33
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.
34
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
35
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.
36
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
37
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.
38
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
39
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
40
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
41
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.
……..
42
……..
……..
……..
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] ).
43
……..
……..
……..
……..
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-
44
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
45
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
46
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.
47
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)
48
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
49
concerned, it is neither supported by any affidavit nor has
any address been provided in it and importantly, was also
closed by the respondent prior to the appellant’s discharge
order. In this context, it is pertinent to refer to the Standing
Order No. 03./S.O./2015 dated 10.06.2015 which directed
that:
“The complaint making allegations against
members of the subordinate judiciary in the
states should not be entertained and no action
should be taken thereon, unless it is
accompanied by a duly sworn affidavit and
verifiable material to substantiate the
allegations made therein
……..
……..
……..
The entry of the complaint in the pre-institution
register for inward number will not be treated
as pendency of Vigilance matter against the
Judicial Officer and will not be taken into
consideration against the Judicial Officer in any
service matter including transfer, promotion and
for compulsory retirement.”
 (emphasis supplied)
In the present case, the record clearly showcases that no
verifiable complaint was filed against the appellant that
could form the basis of the disciplinary proceeding against
him.
50
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
51
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
52
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
53
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
54
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
55
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
56
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
57
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
58
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.
……….
59
……...
……...
……...
………
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
60
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
61
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
62
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
63
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
64
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.
65
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
66
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
67
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
68
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
69
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”.
70
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.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

Comments

Popular posts from this blog

100 Questions on Indian Constitution for UPSC 2020 Pre Exam

संविधान की प्रमुख विशेषताओं का उल्लेख | Characteristics of the Constitution of India

भारतीय संविधान से संबंधित 100 महत्वपूर्ण प्रश्न उतर