Rajesh Kohli vs High Court Of J.&K. & Anr

Registrar [Vigilance] of the High Court. On

conclusion of the enquiry, a report was submitted

stating inter alia that Mr. Rajesh Kohli, the

petitioner herein, who was engaged by Mr. Narain

Dutt - the attorney holder of Babu Ram, identified

someone else as Babu Ram before Registrar

[Judicial], Jammu & Kashmir High Court and

received an account payee cheque in the name of

Babu Ram. In the said report, it was also alleged

that the petitioner besides identifying the

impersonator as Babu Ram, also introduced him

to Vijay Bank at the time of opening of the Bank

account and thereby managed to unlawfully

receive an amount of Rs. 2.6 lacs, while the real

beneficiary - Babu Ram neither appeared before

the Registrar [Judicial] or before Vijaya bank nor did he receive the said amount. The aforesaid

report of the Registrar [Vigilance] dated

24.12.2001 was placed before the Chief Justice of

the Jammu & Kashmir High Court who directed

that the matter be referred to the Chairman,

Disciplinary Committee for necessary action. The

Registrar [Judicial] of the High Court was asked to

file a criminal complaint against the petitioner

before the SHO of the concerned police station.

6. Further, during the period when the petitioner was

posted to District - Kargil as Principal District &

Sessions Judge, he did not join there, w.e.f.,

24.12.2001 to 18.01.2002 and an explanation was

sought from him in that regard. Even thereafter, a

complaint from a judicial employee of District

Kargil was received wherein it was alleged that the

petitioner had been abusing the employees and

had created lot of problems at the District Kargil.

These matters are recorded in the personal

records of the petitioner. After completion of the initial two years of his probationary period, his

records and his case were required to be placed

before Full Court for consideration of his case for

confirmation or extension of period of probation or

otherwise. Consequently his records were

considered by the High Court in its full court

meeting held on 26.04.2003 at Jammu, wherein it

was resolved as under: -

"..........................

resolved that services of Shri Rajesh Kohli, District and Sessions Judge are not found satisfactory and thus the probation of the officer is not extended...... ............ His services are dispensed with............ ..."

The aforesaid resolution of the full court meeting

with the recommendation was forwarded to the

State Government and the State Government

passed an order on 03.07.2003, whereby the

services of the petitioner was dispensed with as

recommended by the Hon'ble High Court. This

action was taken in exercise of the powers vested on the competent authority under sub Rules 3 and

4 of Rule 15 of the Judicial Service Rules.

7. Being aggrieved by the issuance of the aforesaid

order dated 03.07.2003 dispensing with his

service, the petitioner filed the present Writ

Petition on which notice was issued. On service of

notice, the High Court has entered appearance

and also filed the counter affidavit explaining the

circumstances under which the service of the

petitioner came to be terminated.

8. The petitioner appeared in person before us and

submitted that the aforesaid order issued by the

Government of Jammu & Kashmir of 03.07.2003

is illegal and without jurisdiction as the said order

was not issued by the Governor but was issued by

the Government of Jammu & Kashmir. He also

submitted that the recommendation of the High

Court as communicated under letter dated

05.05.2003 is also illegal and liable to be set aside

as the High Court terminated the service of the petitioner under the aforesaid order for which no

power is vested on the High Court to dispense with

the service under its own order. It was also

submitted by him that he had completed his two

years' probation period on 23.08.2002 and since

there was no order of extension of his probation

period prior to and immediately after 23.08.2002,

he should be deemed to have been confirmed in

the judicial service and therefore his service could

not have been terminated on the ground that he

was on probation.

9. The petitioner also submitted that his service was

terminated on the ground of an alleged

misconduct, namely, pendency of a criminal

complaint and his alleged behaviour with

subordinate staff and, therefore, the said order of

termination of service was in the nature of a

punishment by casting a stigma on the petitioner

and therefore illegal and without jurisdiction as no

opportunity of hearing was given to the petitioner prior to passing of the order of his termination. He

also submitted that since he was granted

increments by the respondent, it is proved that the

Respondents were satisfied with his service and,

therefore, the order terminating his service is

without jurisdiction.

10.Counsel appearing for the respondent, the High

Court of Jammu & Kashmir, however, refuted the

aforesaid submissions and placed before us the

records of High Court connected with the service

of petitioner and also the records leading to his

termination from service. He submitted that the

petitioner continued to be on probation even after

two years as no order of his confirmation was

issued or passed by the respondent and that his

service was terminated within the three years

period of his probation on the ground of

unsatisfactory service. He denied that the

impugned order is stigmatic or in any way punitive

or that there was any violation of the principles of natural justice. He submitted that since the

service of the petitioner was terminated on the

ground of unsatisfactory service, there was no

question of drawing up of any departmental

proceedings against him.

11.In the light of the aforesaid submissions of the

counsel appearing for the parties we have perused

the records. The petitioner was recommended by

the High Court of Jammu & Kashmir for

appointment as a District and Sessions Judge on

temporary basis. The appointment letter placed on

record clearly indicates that his initial

appointment was not only on temporary basis but

he was also kept on probation for a period of two

years. Rule 15 of the Jammu & Kashmir Higher

Judicial Service Rules permits an officer to be kept

on probation ordinarily for a period of at least

three years.

12.The petitioner was temporarily appointed as

District & Sessions Judge on 24.08.2000 and therefore completed his initial period of probation

of two years on 23.08.2002. Thereafter his matter

was placed on the administrative side before the

full court of the High Court in its meeting held on

26.04.2003 for the purpose of confirmation of his

service or otherwise or for extension of

probationary period. The full court on

consideration of the records of the petitioner held

that his service was not found to be satisfactory

and therefore, his probation period would not be

extended and accordingly the full court

recommended that the services of the petitioner be

dispensed with. At this stage, it may also be noted

that when by the order dated 03.07.2003 the

service of the petitioner was terminated, the period

of probation of the petitioner was extended for the

period from 24.08.2000 to 05.05.2003, the date on

which a follow-up order was issued by the High

Court to the State Government recommending his

case for termination. Finally by the order dated 03.07.2003, the service of the petitioner was

terminated.

13.Since the rule permits probation to be extended

for another one year and since there was no order

of confirmation passed by the respondents

confirming his service, the petitioner would be

deemed to be continuing on probation immediately

after his expiry of the initial two years of

probation. In this regard, we may refer to the case

of Satya Narayan Athya v. High Court of M.P.

reported in (1996) 1 SCC 560 in which a judicial

officer was not given any confirmation letter even

after the completion of his two years' of probation

period. The rules in the said case provided for the

extension of initial two years of probation period

for a further period of two years. This Court in

that case held at Paragraphs 3 & 5 that : -

"3. ......................A reading thereof would clearly indicate that every candidate appointed to the cadre shall undergo training initially for a period of six months before he is appointed on probation for a period of two years. On his completion of two years of probation, it may be open to the High Court either to confirm or extend the probation. At the end of the probation period, if he is not confirmed on being found unfit, it may be extended for a further period not exceeding two years. It is seen that though there is no order of extension, it must be deemed that he was continued on probation for an extended period of two years. On completion of two years, he must not be deemed to be confirmed automatically. There is no order of confirmation. Until the order is passed, he must be deemed to continue on probation.

5. Under these circumstances, the High Court was justified in discharging the petitioner from service during the period of his probation. It is not necessary that there should be a charge and an enquiry on his conduct since the petitioner is only on probation and during the period of probation, it would be open to the High Court to consider whether he is suitable for confirmation or should be discharged from service."

14.During the period of probation an employee

remains under watch and his service and his

conduct is under scrutiny. Around the time of

completion of the probationary period, an

assessment is made of his work and conduct

during the period of probation and on such assessment a decision is taken as to whether or

not his service is satisfactory and also whether or

not on the basis of his service and track record his

service should be confirmed or extended for

further scrutiny of his service if such extension is

permissible or whether his service should be

dispensed with and terminated. The services

rendered by a judicial officer during probation are

assessed not solely on the basis of judicial

performance, but also on the probity as to how

one has conducted himself.

15.The aforesaid resolution taken by the full court on

its administrative side clearly indicates that the

matter regarding his confirmation or otherwise or

extension of his probation period for another one

year was considered by the full court but since his

service was not found to be satisfactory on

consideration of the records, therefore, the full

court decided not to confirm him in service and to

dispense with his service and accordingly recommended for dispensation of his service. On

the basis of the aforesaid recommendation of the

High Court, an order was passed by the

Government of Jammu & Kashmir dispensing with

the service of the petitioner.

16.These facts clearly prove and establish that the

order of termination of service of the petitioner

was not issued by the Jammu & Kashmir High

Court but it only recommended his termination as

his service was not found to be satisfactory. The

aforesaid recommendation was accepted by the

Government which finally ordered the termination

of his service. The aforesaid order was an order of

the competent authority and issued by the

Government of Jammu & Kashmir. Since the

said order was issued by the competent authority,

it was a valid order and should be treated as such,

although it was specifically not issued in the name

of the Governor.

17.In the present case, two orders are challenged,

one, which was the order of the High Court based

on the basis of the resolution of the full court and

the other one issued by the Government of Jammu

& Kashmir on the ground that they were stigmatic

orders.

18.In our considered opinion, none of the aforesaid

two orders could be said to be a stigmatic order as

no stigma is attached. Of course, aforesaid letters

were issued in view of the resolution of the full

court meeting where the full court of the High

Court held that the service of the petitioner is

unsatisfactory. Whether or not the probation

period could be or should be extended or his

service should be confirmed is required to be

considered by the full court of the High Court and

while doing so necessarily the service records of

the petitioner are required to be considered and if

from the service records it is disclosed that the

service of the petitioner is not satisfactory it is open for the respondents to record such

satisfaction regarding his unsatisfactory service

and even mentioning the same in the order would

not amount to casting any aspersion on the

petitioner nor it could be said that stating in the

order that his service is unsatisfactory amounts to

a stigmatic order.

19.This position is no longer res integra and it is well-

settled that even if an order of termination refers

to unsatisfactory service of the person concerned,

the same cannot be said to be stigmatic. In

Pavanendra Narayan Verma v. Sanjay Gandhi PGI

Of Medical Sciences reported in (2002) 1 SCC 520,

this Court has explained at length the tests that

would apply to determine if an order terminating

the services of a probationer is stigmatic. On the

facts of that case it was held that the opinion

expressed in the termination order that the

probationer's "work and conduct has not been

found satisfactory" was not ex facie stigmatic and in such circumstances the question of having to

comply with the principles of natural justice do

not arise. In this case court had the occasion to

determine as to whether the impugned order

therein was a letter of termination of services

simpliciter or stigmatic termination. After

considering various earlier decisions of this Court

in para 21 of the aforesaid decision it was stated

by this Court thus: (SCC p. 528)

"21. 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 anyone of the three factors is missing, the termination has been upheld."

In para 29 of the judgment, it further held thus:

(SCC, p.529)

"29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a probationer's appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer's appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job."

20.In the case of Krishnadevaraya Education Trust v.

L.A. Balakrishna reported in (2001) 9 SCC 319,

the services of respondent-Assistant Professor

were terminated on the ground that his on the job

proficiency was not upto the mark. This Court

held that merely a mention in the order by the

employer that the services of the employee are not

found to be satisfactory would not tantamount to

the order being a stigmatic one. This Court held

in para 5 thus: -

"5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated."

6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services."

21.In the case of Chaitanya Prakash v. H. Omkarappa

reported in (2010) 2 SCC 623, the services of

respondent were terminated by the appellant

company. During the period of probation, his

services were not found to be satisfactory and he

was also given letters for improvement of his

services and his period of service was also

extended and ultimately company terminated him.

Court after referring to a series of cases held that

the impugned order of termination of respondent

is not stigmatic.

22.In the case of State of Punjab v. Bhagwan Singh

reported in (2002) 9 SCC 636 this Court at

paragraphs 4 & 5 held as follows: -

"4. ............................. In our view, when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma.

5. The other sentence in the impugned order is, that the performance of the officer on the whole was "not satisfactory". Even that does not amount to any stigma."

23.In the present case, the order of termination is a

fall out of his unsatisfactory service adjudged on

the basis of his overall performance and the

manner in which he conducted himself. Such

satisfaction even if recorded that his service is

unsatisfactory would not make the order stigmatic

or punitive as sought to be submitted by the

petitioner. On the basis of the aforesaid resolution,

the matter was referred to the State Government

for issuing necessary orders.

24.One of the issues that were raised by the

petitioner was that he was granted two increments

during the period of two and a half years of his

service. Therefore the stand taken by the

respondents that his service was unsatisfactory is

belied according to the petitioner because of the

aforesaid action even on the part of the

respondents impliedly accepting the position that

his service was satisfactory.

25.The aforesaid submission of the petitioner is

devoid of any merit in view of the fact that since

the petitioner was continuing in service, therefore,

the case for granting increment was required to be

considered which was so granted. The mere

granting of yearly increments would not in any

manner indicate that after completion of the

probation period the full court of the High Court

was not competent to scrutinize his records and

on the basis thereof take a decision as to whether

or not his service should be confirmed or

dispensed with or whether his probation period

should be extended. The High Court has a solemn

duty to consider and appreciate the service of a

judicial officer before confirming him in service.

The district judiciary is the bedrock of our judicial

system and is positioned at the primary level of

entry to the doors of justice. In providing the

opportunity of access to justice to the people of the

country, the judicial officers who are entrusted with the task of adjudication must officiate in a

manner that is becoming of their position and

responsibility towards society.

26.Upright and honest judicial officers are needed

not only to bolster the image of the judiciary in the

eyes of litigants, but also to sustain the culture of

integrity, virtue and ethics among judges. The

public's perception of the judiciary matters just as

much as its role in dispute resolution. The

credibility of the entire judiciary is often

undermined by isolated acts of transgression by a

few members of the Bench, and therefore it is

imperative to maintain a high benchmark of

honesty, accountability and good conduct.

27.In the light of the aforesaid discussion, the

contentions raised by the petitioner are found to

be without any merit and consequently they are

rejected.

28.As a result, there is no merit in this Writ Petition,

which is hereby dismissed, leaving parties to bear

their own costs.

....................................J. [ Dr. Mukundakam Sharma ]

.............................

...........J. [Anil R. Dave] New Delhi, September 21, 2010.