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2019 DIGILAW 2359 (KAR)

Sangam Jayashree v. Registrar General High Court of Karnataka

2019-12-20

ASHOK S.KINAGI, RAVI MALIMATH

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JUDGMENT : 1. The appellant being aggrieved by the order of discharge from service preferred a Writ Petition No.40567 of 2011 before this court. The learned Single Judge vide its order dated 17.01.2012 dismissed the writ petition upholding the order of discharge. The appellant being aggrieved by the order passed in the said writ petition, has filed the present writ appeal. 2. Brief facts of the case are as follows: The appellant was appointed as a Civil Judge (Jr.Dn.) in the Karnataka Judicial Service under the Karnataka Judicial Recruitment Rules 1983, vide notification dated 30.01.2003. The appellant was placed under probation for a period of 2 years from the date of reporting to the duty and she has discharged her service as a Civil Judge (Jr.Dn.) at various places. 3. That on 28.12.2005, when the appellant was discharging her duties as Addl. Civil Judge (Jr.Dn.) and JMFC, Sindanur, a complaint was lodged against her by one Sri. K. Amaregowda, Advocate, Sindanur making allegations of bigamous marriage; passing improper orders in O.S.2 of 2004 and Misc.10 of 2005; and harassing the advocates. That on 09.05.2006, based on the complaint given by K.Amaregowda, Advocate, the matter was placed before the Hon'ble Chief Justice for appropriate orders. The Hon'ble Chief Justice was pleased to pass an order to verify regarding the allegations made with regard to bigamous marriage through Deputy Superintendent of Police attached to the Vigilance Cell. The Deputy Superintendent of Police, Vigilance Cell, after holding an enquiry has submitted a report and stated that the appellant has married one Virupaksha, Advocate, who is having a wife by name Smt. Jayashree and a male child aged, then aged 8 years by name Swaroop and the said fact was also admitted by the appellant. The said report was placed before the Hon'ble Administrative Committee No.I. The Hon'ble Administrative Committee, after considering the entire matter, resolved to refer the matter to the Special Committee constituted to consider the declaration of probation of Civil Judges (Jr.Dn.) appointed during the year 2003 and the said committee also resolved to recommend for discharging the appellant and one Sridhar Rao. That the probation period of the appellant was extended for a period of one year with effect from 04.10.2008, along with the other officers, to assess the performance of the said officer after a period of one year. 4. That the probation period of the appellant was extended for a period of one year with effect from 04.10.2008, along with the other officers, to assess the performance of the said officer after a period of one year. 4. The Administrative Committee No.III considering the entire material on record resolved that 5 judicial officers, including the appellant, are not fit and suitable to be confirmed as Civil Judges and they are to be discharged from service under Karnataka Civil Services (Probation) Rules, 1977 ('Rules of 1977' for short) and recommended to the Hon'ble Full Court. The Hon'ble Full Court in its meeting held on 08.10.2010 resolved that the appellant and other judicial officers are not fit and suitable to be confirmed as Civil Judges and they are to be discharged from service under the Rules of 1977, and accordingly, recommended to the State Government to pass suitable orders. The State Government, by order dated 31.12.2010 has discharged 6 judicial officers, including the appellant under Rule 5(1)(b) of the Rules of 1977. The appellant being aggrieved by the order of discharge dated 31.12.2010, preferred the Writ Petition No.40567 of 2011. The respondents appeared and filed statement of objections and took a stand that sufficient opportunity was given to the appellant to improve herself and therefore, her probationary period was extended further. But inspite of giving sufficient opportunity, the appellant did not improve herself and the Administrative Committee which was constituted to consider the case of the judicial officers for confirmation, on 27.08.2010 resolved that 5 judicial officers referred therein are not fit and suitable to be confirmed as Civil Judges and they are to be discharged from service under the above said Rules of 1977. That the order of discharge clearly indicates that the work performance, annual confidential records, vigilance reports and other relevant materials of the judicial officers were considered by the Administrative Committee and the said committee decision was put before the Hon'ble Full Court and the Hon'ble Full Court recommended for discharge of the appellant. In the said order dated 31.12.2010, there is no whisper regarding any allegation of misconduct against the appellant and the competent authority has taken the decision to discharge the appellant on account of her work performance, annual reports, vigilance reports and other relevant records. In the said order dated 31.12.2010, there is no whisper regarding any allegation of misconduct against the appellant and the competent authority has taken the decision to discharge the appellant on account of her work performance, annual reports, vigilance reports and other relevant records. The said discharge order is simple in nature as having been found unsuitable to hold the post and the said order is not a stigmatic order. Hence sought for dismissal of the writ petition. 5. The learned Single Judge, after hearing both sides was pleased to dismiss the writ petition filed by the appellant on the ground that the appellant was called by the Registrar (Vigilance) through notice dated 09.01.2007, to explain the apparent violation of Rule 28(2) of the Karnataka Civil Services (Conduct) Rules 1966 ('the Conduct Rules' for short), for having married one M. Virupaksha, Advocate who had a wife living. The appellant admitted her marriage in the reply letter dated 18.01.2007, with an explanation. The Administrative Committee also opined that the charges leveled against the appellant is grave in nature and there was grave violation of Rule 28(2) of the Conduct Rules and has considered the resolutions passed by the Special Committee, as well as the Administrative Committee. The said order of discharge is simple in nature and not a stigmatic order. Hence dismissed the writ petition. 6. The appellant being aggrieved by the said order passed in the above said writ petition, this writ appeal has been filed on the ground that order of discharge was punitive in nature and not preceded by any enquiry and she has discharged as a judicial officer for a period of 8 years without any adverse communication and her performance did not fall below the prescribed standard. She was meeting with the targets with reference to disposals and on several occasion she gave excess quota, than the limit prescribed by the Hon'ble High Court. It is further contended that she was not aware about her husband having a first wife and that she came to know of the same, subsequently. By that time she was appointed as a judicial officer and she could do nothing, taking into consideration of her self-respect. That she should have been given an opportunity of hearing. 7. The learned Senior Counsel appearing for the appellant has placed reliance on the following judgments of the Apex Court: 1. By that time she was appointed as a judicial officer and she could do nothing, taking into consideration of her self-respect. That she should have been given an opportunity of hearing. 7. The learned Senior Counsel appearing for the appellant has placed reliance on the following judgments of the Apex Court: 1. Appar Apar Singh vs. State of Punjab and Others, (1970) 3 SCC 338 2. K.H. Phadnis vs. State of Maharashtra, (1971) 1 SCC 790 3. Samsher Singh vs. State of Punjab and Another, (1974) 2 SCC 831 4. Gujarat Steel Tubes Limited vs. Gujarat Steel Tubes Mazdoor Sabha, (1980) 2 SCC 593 5. Anoop Jaiswal vs. Government of India and Another, (1984) 2 SCC 369 6. Indra Pal Gupta vs. Managing Committee Model Inter College, Thora (1984) 3 SCC 384 7. Punjab National Bank vs. Astamija Dash, (2008) 14 SCC 370 8. Radhey Shyam Gupta vs. U.P. State Agro Industries Corporation, (1999) 2 SCC 21 9. Chandra Prakash Shahi vs. State of U.P. and Others, (2000) 5 SCC 152 10. Jadish Mitter vs. The Union of India, AIR 1964 SC 449 11. Dipti Prakash Banerjee vs. Sathyendra Nath Bose National Centre for Basic Sciences, Calcutta and Others, (1993) 3 SCC 60 12. Registrar General, High Court of Gujarat and Another vs. Jayashree Chamanlal Buddhbhatti, (2013) 16 SCC 59 13. Union of India and Others vs. Mahaveer C. Singhvi, (2010) 8 SCC 220 14. Ajit Singh and Others vs. State of Punjab and Another, (1983) 2 SCC 217 15. Dev Dutt vs. Union of India and Others, (2008) 8 SCC 725 16. State of Gujarat and Another vs. Suryakant Chunilal Shah, (1999) 1 SCC 529 17. S.K. Venkata Reddy vs. High Court of Karnataka, ILR 2008 Kar. 2808 8. The learned counsel appearing for the respondents has supported the impugned order and also contended that the appellant being a judicial officer must abide by the provisions of law. The act of the appellant in marrying Sri. Virupaksha who had a wife living and child aged about 8 years then, amounts to violation of Rule 28(2) of the Conduct Rules and further her performance was not satisfactory. Hence the Administrative Committee as well as Special Committee, after taking into consideration the material placed on record has rightly recommended to the State Government to take suitable action against the appellant. Hence the Administrative Committee as well as Special Committee, after taking into consideration the material placed on record has rightly recommended to the State Government to take suitable action against the appellant. The State Government after considering the material on record has rightly passed an order for discharge of appellant. 9. The show-cause notice was issued to the appellant. The appellant gave a reply admitting that she had contacted a bigamous marriage with one Virupaksha who had a wife living and a child aged about 8 years then, and who had not divorced his first wife. Further she has also not sought permission from the State Government for her marriage. Thus it amounts to violation of Rule 28(2) of the Conduct Rules. The appellant being a judicial officer is bound to abide by the Rules, but not to violate the said Rules. If the conduct of the appellant is condoned, it gives a wrong message to the society that the Judges are not abiding the law. The action of the appellant cannot be condoned. Merely because the probationary period of the appellant was extended does not mean that the court has condoned the act of the appellant in violating Rule 28(2) of the Conduct Rules. 10. The services of an appointee to a permanent post on probation can be terminated or dispensed with, during or at the end of the period of probation because the appointee does not acquire any right to hold or continue to hold such a post during the period of probation. That the period of probation is intended to assess the work of the probationer whether it is satisfactory and whether the appointee is suitable for the post; the competent authority may come to the conclusion that the probationer is unsuitable for the job and hence he must be discharged on account of inadequacy for the job or for any temperamental or other similar grounds not involving moral turpitude. In the present case, the work of the appellant was not satisfactory and she was unfit. Her performance was not up to mark. The Hon'ble Apex Court in the case of H.L. Sangati vs. Registrar General, High Court of Karnataka, (2001) 3 SCC 117 , has held as under: "10. In our opinion the impugned order does not cast any stigma on the appellants. Her performance was not up to mark. The Hon'ble Apex Court in the case of H.L. Sangati vs. Registrar General, High Court of Karnataka, (2001) 3 SCC 117 , has held as under: "10. In our opinion the impugned order does not cast any stigma on the appellants. All that has been said in the impugned order is that the appellants were unsuitable to hold the post of Munsifs. It is pertinent to note that Rule 6 contemplates a probationer being discharged from service on one or more of the following grounds: (i) in terms of the condition imposed by the Rules. (ii) in terms of the order of appointment. (iii) on the account of unsuitability of the appointee for the service or post. Sub-Rule (2) of Rule 6 requires an order discharging the probation to indicate the grounds for the discharge. It also provides that such indicating of the grounds for the discharge in the order would not require any formal proceedings under the Karnataka Civil Service (Classification, Control and Appeal) Rules, 1957 being held. The impugned order of discharge has been passed in strict compliance of the requirement of Rule 6. It does not cast any stigma on the appellants nor is it punitive. There was, thus, no requirement to comply with the principles of natural justice, much less to be preceded by formal proceedings of inquiry before making the order." 11. In the present case, the appellant was discharged on account of unsuitability for the post. It falls within the purview of Rule 6 of the Karnataka Civil Service (Classification, Control and Appeal) Rules 1957. The order of discharge having been passed in strict compliance with the requirement of Rule 6, the order of discharge does not cast any stigma on the appellant nor is it punitive. 12. The contention of the appellant that opportunity was not given before passing the order of discharge does not hold good, as she herself has admitted in the reply that she had contacted a bigamous marriage. When she herself has admitted the said fact, the facts admitted need not be proved. 13. That by perusing the records and the resolutions passed by the Special Committee as well as the Administrative Committee and the resolutions of the Hon'ble Full Court, the Full Court was right in recommending to discharge the services of the appellant based on the records. 13. That by perusing the records and the resolutions passed by the Special Committee as well as the Administrative Committee and the resolutions of the Hon'ble Full Court, the Full Court was right in recommending to discharge the services of the appellant based on the records. We are also satisfied after perusing the confidential reports and other relevant vigilance files, etc., that the appellant is not entitled to continue as a judicial officer. The order of termination is a termination simpliciter and not punitive in nature and, therefore, no opportunity needs to be given to the appellant. The overall performance of the appellant was found to be unsatisfactory during the period of probation. The service of the appellant during the period of probation requires to be terminated because of her unsuitability for the post. The probation remains probation unless he or she has been confirmed on the basis of work evaluation. There is no denying of the fact that in all the organizations there is a great deal of dead wood and, more so in government and judicial departments, which has to be replaced in public interest. Therefore, it is purely a matter of subjective satisfaction of the High Court. In such case, the record so considered would naturally include the entries in the confidential reports/character rolls/vigilance reports, both favourable and adverse. There cannot be any justification for interference by this court in such cases. 14. In the case on hand, on the facts and circumstances of the case with reference to the relevant rules, original records such as confidential reports, vigilance report and other annexure filed along with writ petition, number of judgments were cited by learned counsels on either side. The judgments cited by both parties are distinguishable both on facts and on law. 15. The learned Single Judge, after considering the entire material on record, has rightly dismissed the writ petition. We do not find any good grounds to interfere with the order passed by the learned Single Judge. Accordingly, the writ appeal is dismissed. No costs.