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2005 DIGILAW 3322 (RAJ)

Shiv Charan Gupta v. State of Rajasthan

2005-12-19

KRISHAN KUMAR ACHARYA, S.N.JHA

body2005
Judgment S.N. Jha, CJ.-This special appeal is directed against the order of the learned Single Judge dated 17.04.1986 in S.B. Civil Writ Petition No. 1652/1984 dismissing the writ petition of the appellant. 2. The appellant had filed the writ petition for quashing the communication dated 30.01.1984 informing him that the period of his probation which had expired on 10.01.1984 had been extended upto 31.01.1984 and the same would not be extended, and the order dated 04.02.1984 consequently dispensing with his services in terms of Rule 24(1) of the Rajasthan Judicial Service Rules, 1955 with immediate effect. The appellant further sought direction for his reinstatement in the Rajasthan Judicial Service with all consequential benefits. 3. Case of the appellant is that on his selection he was appointed as Munsiff and Judicial Magistrate in the Rajasthan Judicial Service on probation for a period of two years in terms of Rule 21 of the Rajasthan Judicial Service Rules, 1955 and posted at Alwar for initial training for 15 days under the supervision of the District Judge, Alwar from 11.01.1982 to 25.01.1982. On completion of training he was posted as Judicial Magistrate No. 2, Alwar from where on 28.06.1982 he was transferred to Jalore as Munsiff and Judicial Magistrate. He served there upto 30.01.1984 i.e., till termination of his services. During his tenure at Alwar two persons were produced before him by the Deputy Superintendent of Police, Shri Arind and Head Constable, Manohar Lal, for remand in connection with FIR No. 24/1982 of Police Station, Malakheda. The case in fact pertained to the jurisdiction of another Court but as the Presiding Officer of that Court was not available remand was sought from him as the link magistrate. The petitioner found several injuries on the bodies of the accused and made observations regarding callous, cruel and inhuman treatment to them and refused to grant police remand and instead granted judicial remand for ten days. This angered the police officials and they hatched a conspiracy and submitted a false complaint to the District and Sessions Judge, Alwar. The District and Sessions Judge, Alwar reported the matter to the High Court which led to his transfer to Jalore on 28.06.1982. The case of the appellant is that during his entire tenure of service lasting for about 26 months he served for five months in the Alwar Judgeship and for about 20 months in the Jalore Judgeship. The District and Sessions Judge, Alwar reported the matter to the High Court which led to his transfer to Jalore on 28.06.1982. The case of the appellant is that during his entire tenure of service lasting for about 26 months he served for five months in the Alwar Judgeship and for about 20 months in the Jalore Judgeship. Nothing untoward happened during his tenure at Jalore. According to the appellant, dispensing with his services was pursuant to the inquiry report submitted by the District Judge, Alwar who had meanwhile joined the Registry of the High Court and succeeded in misrepresenting facts leading to the impugned order. The case of the appellant thus is that as termination of his services was founded on an inquiry report in respect of alleged misconduct on the part of the appellant, the orders are fit to be set aside as being punitive in nature. The orders, according to the appellant, also are stigmatic in nature and violative of the rules of natural justice, as the inquiry, report of which was the foundation of orders, had been held behind his back without giving him opportunity of hearing. 4. The High Court in its reply stated that the impugned orders were passed in exercise of powers conferred by Sub-rule (1) of Rule 24 of the Rajasthan Judicial Service Rules on consideration of the special reports about the working of the appellant and suitability from the District Judges under whom he had worked during probation period. On such consideration the High Court came to the conclusion that the appellant had not made sufficient use of his opportunities and had otherwise failed to render satisfactory work. The allegation that the orders had been passed on the basis of any inquiry report was denied and it was categorically stated that no inquiry of any sort had been conducted against the appellant on the charge of misconduct or inefficiency or corruption, no such inquiry report had been submitted by the District Judge to the High Court. The reports which were taken into account were special reports which the High Court had called for regarding the appellants working during probation period. 5. The reports which were taken into account were special reports which the High Court had called for regarding the appellants working during probation period. 5. The learned Single Judge summoned the original records from the High Court and on perusal of the reports of the District Judge, Alwar and District Judge, Jalore as well as minutes of the Full Court recommending the appellants discharge, found that there was no mention of any inquiry in the reports of the District Judges. The reports had been placed before the Full Court and the Full Court after perusing the same was satisfied that the appellant had failed to utilise the opportunities and also failed to give satisfaction. The learned Judge thus did not find any substance in the appellants case that the report of the District Judge, Alwar regarding the incident in connection with FIR No. 24/1982 of Police Station, Malkheda had been used as foundation to dispense with the appellants services. The learned Judge also held that the order of discharge was simplicitor and did not cast stigma and, therefore, the order cannot be said to be stigmatic or violation of the rules of natural justice. The learned Single Judge accordingly came to the conclusion that the discharge of the appellant was bona fide and did not warrant any interference. On these findings the learned Single Judge dismissed the writ petition. 6. Appearing in person the appellant submitted an additional affidavit at the time of hearing on 111.2005. While reiterating his grievance that he had been made victim of conspiracy by the police and the impugned order was passed on the basis of adverse report of the District Judge, Alwar after ex parte inquiry about complaint of the police officials which became the foundation of termination of his services, the appellant stated that irrespective of the result of this appeal - even if the impugned order of termination were set aside, he is not interested in reinstatement and/or consequential benefits of salary etc. It would be useful to extract the relevant passage from the said affidavit as under:- “That presently I am practicing in the Rajasthan High Court, Jaipur Bench as well as in the Honble Apex Court. Now I am not interested in joining subordinate Judicial Services and, in fact, I would not join even if the impugned order of termination dated 30.01.1984 is set aside in this appeal. Now I am not interested in joining subordinate Judicial Services and, in fact, I would not join even if the impugned order of termination dated 30.01.1984 is set aside in this appeal. I also do not want to claim any consequential benefits of salary etc., because I have earned much more in the practice than what I would have obtained as salary during the aforesaid period.” In his oral submissions the appellant made statement to the same effect adding further that all that he wants at this stage is that his honour may be vindicated by making suitable observations. 7. While we appreciate the sentiments of the appellant we find nothing in the record to find fault with the orders by which the appellants services were dispensed with. The Law is settled that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of probation on account of his unsuitability for the post. If the determination of suitability for the post in question or for further retention in service or for confirmation, an inquiry is held and on the basis of such inquiry a decision is taken to terminate his services the order cannot be said to be punitive in nature. No doubt, where there are allegations of misconduct, and an inquiry is held to find out the truth of the alleged misconduct and order terminating ones services is passed in the basis of such inquiry, the order would be punitive for the reason that the inquiry was held to find out the truth of allegations of misconduct and not for assessing the suitability of the person concerned for the post in question. In other words, the determining factor is whether facts stated in the report provided motive or foundation for dispensing with the services. It may be useful to notice the observations of the Supreme Court in Chandra Prakash Shahi vs. State of U.P & Ors., 2000 (5) SCC 152 as under:- “29. "Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? "Motive" is the moving power which impels action for a definite result, or to put it differently, "motive" is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry”. 8. The appellant in support of his case submitted a bunch of decisions on the subject. It is not necessary to refer to them, for the case basically has to be decided on its own facts. The moot question is whether any inquiry had been held in respect of the alleged misconduct of the appellant so as to find out truth of the allegations against him, and whether the impugned decision was taken on the basis of such inquiry report? The learned Single Judge on perusal of the relevant record came to a specific finding that the reports which were the basis of the impugned decision had been submitted pursuant to the direction of the High Court regarding working of the appellant i.e., the suitability of the appellant for the purpose of confirmation. There being no such report of the District Judge, Alwar or any other report in respect of any misconduct on the part of the appellant, it cannot be said that the reports were the foundation of the impugned decision. The reports rather provided materials having bearing on the suitability of the appellant. On the basis of the said reports the Full Court came to the conclusion that the appellant had not made sufficient use of his opportunities and had failed to give satisfaction. In other words, in the opinion of the Full Court the appellant was not suitable for confirmation. This Court cannot sit in appeal over the administrative decision of the Full Court. 9. In other words, in the opinion of the Full Court the appellant was not suitable for confirmation. This Court cannot sit in appeal over the administrative decision of the Full Court. 9. In the facts and circumstances we find no error in the order of the learned single Judge to warrant interference by the Division Bench. 10. In the result, the appeal is dismissed without any order as to costs.