Rajesh Kumar Srivastava vs State Of Jharkhand & Ors

Rajesh Kumar Srivastava .... Appellant

Versus

State of Jharkhand & Ors. ...Respondents

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Leave granted.

2. The appellant herein submitted his application offering himself

as a candidate for the post of Munsif to be recruited by the

respondents for which an advertisement was also issued.

Pursuant to the aforesaid application filed by the appellant, he

was called to appear in the various tests held, including the

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interview conducted by the High Court. He successfully

completed his tests and consequently was declared successful

in the year 2001.

3. After completing his training period, a notification was issued

on 21.05.2002, appointing him as a Probationer Munsif. The

said notification was issued by the Government of Jharkhand.

He was posted at Dhanbad by a notification issued by the

High Court. On 04.06.2002, he assumed the charge as

Probationer Munsif at Dhanbad. On 15.07.2002, he was

conferred with the power of Judicial Magistrate 1st Class.

While he was discharging his duties as such, he passed an

order on 06.01.2003, discharging all the accused under

Section 239 Cr.P.C. in G.R. No. 4698 of 1995 under Sections

406, 408, 420, 120-B IPC.

4. A complaint from one Ram Kumar was received by the High

Court on 04.03.2003, wherein it was alleged that the appellant

had discharged the said accused persons, despite rejection of

revision application by the High Court earlier. It was also

alleged that the aforesaid order discharging the accused was

passed for extraneous consideration. The High Court on

receipt of the aforesaid complaint called for a report from the

District & Sessions Judge, Dhanbad. On receipt of the said

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communication, the District & Sessions Judge, Dhanbad, sent

a letter to the appellant directing him to offer his remarks

which were submitted by the appellant. The said remarks and

report along with confidential report of the appellant were

submitted by the District & Sessions Judge, Dhanbad, before

the High Court. On 28.04.2003, the concerned Zonal Judge

referred the matter to the Standing Committee for further

action. In terms of the decision of the Zonal Judge, the then

Chief Justice of the High Court also referred the matter to the

Standing Committee by way of recording an order on

01.05.2003. The matter was considered in the meeting of the

Standing Committee held on 08.07.2003.

5. After considering the performance and the suitability of the

appellant, it was resolved that the matter be referred to the

Full Court for consideration, and a decision as to whether or

not the continuation of the service of the appellant was

required. Consequent thereupon the matter was placed before

the Full Court meeting held on 18.07.2003, wherein it was

resolved by the Full Court that the continuation of the service

of the appellant was no longer required and that he should be

discharged. Consequent thereupon the resolution of the Full

Court was sent to the Government. The Government of

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Jharkhand issued an order dated 31.07.2003, stating that the

services of the appellant are no longer required in public

interest, and therefore, the appellant stands discharged from

service with effect from 31.07.2003.

6. Challenging the said order passed by the State Government,

the appellant filed a Writ Petition before the High Court which

was dismissed by the Division Bench of the High Court by a

detailed order giving reasons for its decision dated 04.04.2008.

7. The appellant being aggrieved by the aforesaid order passed by

the High Court filed the present appeal in this Court, on which

we heard learned counsel appearing for the parties, who had

also taken us painstakingly through the records of the case.

Having considered the same, we proceed to dispose of the

present appeal by recording our reasons for our conclusion.

8. The counsel appearing for the appellant submitted that the

order challenged by way of the Writ Petition was an order of

removal and the same having been passed without holding an

enquiry amounts to, not only violation of principles of natural

justice but also amounts to casting a stigma in the career of

the appellant and, therefore, the order passed by the High

Court is illegal and liable to be set aside.

4 9. The Counsel appearing for the respondents, however, refuted

the aforesaid submissions. He submitted that the appellant

was on probation when a notification removing him from the

service in public interest was issued and that the order passed

was just and proper. 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.

10. The records placed before us disclose that at the time when

the impugned order was passed, the appellant was working as

a Probationer Munsif. A person is placed on probation so as

to enable the employer to adjudge his suitability for

continuation in the service and also for confirmation in

service. There are various criteria for adjudging suitability of a

person to hold the post on permanent basis and by way of

confirmation. At that stage and during the period of probation

the action and activities of the appellant are generally under

scrutiny and on the basis of his overall performance a decision

is generally taken as to whether his services should be

continued and that he should be confirmed, or he should be

released from service. In the present case, in the course of

adjudging such suitability it was found by the respondents

that the performance of the appellant was not satisfactory and

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therefore he was not suitable for the job. The aforesaid

decision to release him from service was taken by the

respondents considering his overall performance, conduct and

suitability for the job. While taking a decision in this regard

neither any notice is required to be given to the appellant nor

he is required to be given any opportunity of hearing. Strictly

speaking, it is not a case of removal as sought to be made out

by the appellant, but was a case of simple discharge from

service. It is, therefore, only a termination simpliciter and not

removal from service on the grounds of indiscipline or

misconduct. While adjudging his performance, conduct and

overall suitability, his performance record as also the report

from the higher authorities were called for and they were

looked into before any decision was taken as to whether the

officer concerned should be continued in service or not.

11.In a recent decision of this Court in Rajesh Kohli vs. High

Court of J & K & Anr. reported at (2010) 12 SCC 783: 2010

(10) JT 276, almost a similar issue cropped up for

consideration, in which this Court has held that the High

Court has a solemn duty to consider and appreciate the

service of a judicial officer before confirming him in service

and for this not only judicial performance but also probity as

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to how one has conducted himself is relevant and important. It

was also held in the same decision that upright and honest

judicial officers are needed in the district judiciary, which is

the bedrock of our judicial system.

12.The order of termination passed in the present case 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 decision cannot be said to be stigmatic or

punitive. This is a case of termination of service simpliciter

and not a case of stigmatic termination and therefore there is

no infirmity in the impugned judgment and order passed by

the High Court.

13.We do not find any merit in this appeal, therefore, we dismiss

the same, but leaving the parties to bear their own costs.

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

[Dr. Mukundakam Sharma]

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

[Anil R. Dave]

New Delhi,

MARCH 10, 2011.

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