Registrar General Vs Jayshree Chamanlal Buddhbhatti

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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9346 OF 2013 (@ out of SPECIAL LEAVE PETITION (CIVIL) NO. 17215/2009 )

Registrar General High Court of Gujarat & Anr. … Petitioners

Versus

Jayshree Chamanlal Buddhbhatti … Respondent

J U D G E M E N T

H.L. Gokhale J.

Leave Granted.

2. This appeal by Special Leave seeks to challenge

the judgment and order rendered by a Division Bench of

Gujarat High Court dated 15.5.2009, allowing the Special Civil

Application No.2880 of 2008, filed by the respondent herein.

3. The appeal raises the question with respect to the

disputed termination of services of the respondent herein as

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a Civil Judge, Junior Division, in the Gujarat Judiciary. The

impugned judgment has accepted the contention of the

respondent that the termination of her services was a

stigmatic one, and she was removed from her services after

an inquiry in which she was not informed of the charges

against her, nor was she given the opportunity of being heard

in respect of those charges, which are the minimum

requirements under Article 311 (2) of the Constitution of

India. As against that, the contention of the appellants has

been that the respondent’s service was discontinued during

the period of her probation, since she was not found suitable

for the post she was holding, and it was not a stigmatic

termination to attract Article

311 (2) of the Constitution of India.

Facts leading to this appeal are this wise:-

4. The respondent appeared for the selection for the

post of a Civil Judge, Junior Division, in the year 2003, and

obtained 7th rank out of 84 candidates, and was appointed as

a Civil Judge on 2.3.2005. To begin with, she was placed on

probation for a period of two years. Her initial posting was at

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Rajkot to undergo the training alongwith the District Judge.

Subsequent thereto, she was given a full-fledged posting as a

Civil Judge and Judicial Magistrate First Class, at Kodinar

District Junagadh, by the order of the High Court dated

30.12.2005. She took the charge of the said post on

7.1.2006.

5. It is her case that she was discharging her duties

faithfully and sincerely, but in the course of her work she

found that some of her subordinate staff members were not

conducting themselves properly, and were involved in taking

the court papers outside the court premises, which was

something that could not be permitted. She wrote letters to

the then District Judge, Junagadh Mr. B.U. Joshi, on 16.5.2006

and 19.5.2006, with respect to the difficulties faced by her,

due to the behavior of the subordinate staff, and amongst

other things she recorded this particular conduct on their

part. There was no response to these letters, but she

received adverse remarks, vide the letter dated 19.9.2006,

addressed by the Registrar (Administration) of the High Court

of Gujarat. The said letter read as follows:-

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“Confidential

J.C. Upadhyay Registrar (Administration) High Court of Gujarat, at Sola Ahmedabad-380 060

No. A. 0722/82 Dated 19.9.2006

To Miss J.C. Buddhabhatti, Principal Civil Judge and Judicial Magistrate, First Class, Kodinar

Through: The Principal District Judge, Junagadh

Subject: Adverse remark- Communication of …

Madam, With reference to the subject noted above, I am directed by the Hon’ble the Acting Chief Justice and Judges, to state that the following remarks have been passed in the Confidential Report in Form No. III in respect of you:- (4) Personal characteristics: (8) Politeness and courtesy Required

improvement

(5) The District Judge’s Assessment Of the Civil Judge regarding his/her- (x) Attitude towards the public and the bar Requires

improvement

I am, therefore, directed by their Lordships to request you to be so good as to try to show improvement in these respects in future.

Yours faithfully

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Sd/- Registrar (Admn.)”

6. The respondent replied to the said communication

by her letter dated 14.11.2006, in which she pointed out that

the disposal of cases by her had been good. She had

disposed of 509 Civil and 1619 Criminal cases totaling to

2128 cases during the period January 2006 to October 2006.

She stated in her letter that it would not have been possible

to do so without her good attitude, and also without the

cooperation of the bar and public. In any event, she assured

in her reply that she will try to improve politeness and

courtesy, and also improve her attitude towards the public

and the bar.

7. Thereafter, the respondent received a letter dated

25.7.2007 from the Registrar Administration, High Court of

Gujarat communicating adverse remarks for the subsequent

period. This letter reads as follows:-

“No.A.0722/82 Date: 25-7-2007

To

Miss J.C. Buddhabhatti Principal Civil Judge and Judicial Magistrate, First Class,

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Kodinar.

Through : The Principal District Judge, Junagadh.

Subject : Adverse remarks- Communication of…

Madam,

With reference to the subject noted above, I am directed by the Honourable the Chief Justice and Judges to state that, the following remarks have been passed in the Confidential Report in Form No.IV in respect of you :- (3) Character :

(c) Whether she mixes in Yes, it is heard so.

such company as she should not.

(d) Whether she maintains No, it is heard so.

Judicial aloofness By limited contact.

(4) Personal characteristics :

(4) Clarity of thought and Required improvement

expression in correspond- ence and discussion

(8) Politeness and courtesy Required improvement

(5) The District Judge’s Assessment of the Civil Judge regarding his / her

(i) Ability Now appears, not able

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for independent station.

(vi) Judicial qualities Now appears it required

Improvement

(vii) (A) Administrative capacity, Now appears Knowledge of administra-inadequate tive work and office routine

(x) Attitude towards the public Required improvement

And the Bar

(xi) Any other remarks She has threatened the

Staff in the name of District Judge.

Hence She is not reliable

and Hence it is not

possible For the D.J. to enter

in Her Chamber

without third person.

I am, therefore, directed by Their Lordships to request you to be so good as to show improvement in these respects in future.

Yours faithfully,

Registrar (Admn.)

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8. The respondent replied the said letter on 24.8.2007

and her reply reads as follows:-

“Confidential No.24/2007 Principal Civil Court Kodinar. Dt. 24-08-2007

From Miss J.C. Buddhbhatti, Principal Civil Judge and Judicial Magistrate, First Class, Kodinar.

To, The Hon’ble Registrar (Administration) High Court of Gujarat, at Sola Ahmedabad- 380060.

Through: The Principal District Judge, Junagadh Subject: Clarification in respect of communication

of Adverse Remarks.

Ref: Your Honour’s Letter No.A.0722/82,Dt.27/7/07

Respected Sir,

With reference to the subject noted above, I have honour to submit my reply as under, kindly consider the same.

(1) The remarks in respect of my characters as shown 3(c)(d), are based on hearsay because as a judicial officer I maintain judicial aloofness and I am not keeping any relation or company with any person which should not.

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(2) The remarks in respect of my personal characteristic as shown in para-4 – I will follow the instructions and will improve the requirement as shown in said remarks.

(3) With reference to remarks shown in para-5(i) – I have to state that I have disposed of total cases3317 (834+2483) Civil as well as criminal case during my tenure in independent station and tried to minimize the arrears. So I believe that I am able to work in independent station. Further, I will try to improve judicial qualities as mentioned in para-5(vi).

(4) In respect of remarks mentioned in para- 5(vii)(a). I submit that I am fresh recruited and require experience in respect of administrative work even though I am trying to see that office routine work should run smoothly and I am confident in near future I will able to achieve perfect administrative capacity and knowledge of administrative work and office routine work.

(5) In respect of remarks in para-(x), I have disposed total 3317 (834+2483) civil as well as criminal cases during my tenure. It is not easy to do so without my good attitude and also without the co-operation of Bar and Public. My relation with public and Bar is cordial. Further Bar Association has no complaint against me.

(6) With reference to remarks in para-5(xi). I submit that some of the staff members including Registrar, criminal clerk and senior clerk were mischievous and tried to hamper administrative works. I complained against the criminal clerk and Registrar and account clerk to the District Jude in writing. Some of

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the staff members were impolite and uncontrollable and did not maintain the dignity of a lady Judge. I have not threatened them in the name of District Judge but most of the male staff members from Junagadh and working in Kodinar Court, they threatened me in the name of District Judge. Those members of the staff are already transferred from this station and senior clerk Mr. M.H. Tanna, was convicted for offence punishable under Section 302 of Indian Penal Code. So at present relationship between the presiding officer and staff members are quite good and administrative work runs smoothly. I have every respect for my District Judge and never shown any disregard for him. During my tenure District Judge Shree B.U. Joshi Saheb and Shree R.D. Kothari Saheb has periodically visited my court and I behaved politely with them and have not shown disregard for them so as superior officer naturally. District Judge Saheb can enter in my Chamber during the visit. Further I have never been instructed by my superior officers in any occasion during their visit for any untoward incident.

Further I assure I will try to do my level best to comply the suggestions for improvement as per your Honours desire.

Thanking you, Yours Faithfully,

(Miss J.C. Buddhbhatti) Principal Civil Judge and

J.M.F.C. Kodinar.”

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9. Then followed the termination of the service of the

respondent vide a notification No.CJM/102004/340/D (Part)

dated 14.12.2007. The termination letter reads as follows:-

“GOVERNMENT OF GUJARAT LEGAL DEPARTMENT

Sachivalaya, Gandhinagar Dated : 14th December, 2007

NOTIFICATION NO.CJM/102004/340/D (Part)

Miss J.C. Buddhabhati, Principal Judge and JMFC, Kodinar was appointed in cadre of Civil Judge (JD) by this department Notification No.CJM-102004- 340-D (Part) dated 2.3.2005 on probation for two years.

The Hon’ble High Court, on the strength of material on record relating to period of probation of Miss J.C. Buddhabhati, Civil Judge and JMFC, has found that her performance is not good and satisfactory and that she is not suitable for the post she holds, and therefore recommended to terminate her probation period immediately and she should not be continued to officiate for long term.

The Government of Gujarat accordingly accepts the recommendation of Hon’ble High Court and terminates appointment on probation period of Miss J.c. Buddhabhatti, Principal Civil Judge and JMFC, Kodinar with immediate effect.

By order and in the name of the Governor of Gujarat.

(V.K. PUJARA) Deputy Secretary to Government

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Legal Department”

10. The respondent was naturally shocked to receive

this order, and made a representation on this termination

letter on 4.1.2008, in which she pointed out that if she was

given an opportunity of being heard, she could have clarified

the position with respect to whatever material that was there

on record, relating to her probation period, and on the basis

of which her performance was held not to be good and

satisfactory. As far as her merit is concerned, she submitted

that during her tenure she had rendered 271 judgments in

civil matters, and 523 judgments in criminal cases. She was

one of the very few candidates who were given independent

postings at the beginning of their career. She pointed out

that as per the norms of disposal, an average judicial officer

holding an independent charge was supposed to decide six

civil matters and eight criminal matters in a month, and her

disposal was far more than the required average. Her

performance was rated as very good for the period from

7.4.2006 till 31.12.2006, and also during the year 2007. She

added that to the best of her information 115 Judges were

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appointed during her time which included some 80 Judges of

her batch, and none of them had given as many judgments

as she had, both on civil as well as on criminal side. She

further stated that as per her information only 25 of her

judgments were carried in appeal to the appellate court, and

one up to the High Court which got confirmed.

11. The respondent thereafter pointed out that as

Principal Civil Judge and JMFC, she was supposed to conduct

some Miscellaneous cases (such as concerning liquor

prohibition) alongwith civil and criminal matters. When she

joined as a Judge, some 835 Misc. cases were pending in her

court, out of which she disposed of 613 cases in the year

2007. She pointed out in her representation that because of

her industry and integrity, some of her subordinate staff

members who were otherwise dishonest, started behaving in

an uncouth, uncivilized and non-chivalrous manner. She was

therefore, constrained to record in her letters dated 7.9.2006

and 30.9.2006 to the then District Judge of Junagadh, Mr. B.U.

Joshi, with respect to the misconduct of Mr. D.R. Weghela,

clerk in charge of criminal matters, and C.O C. Mr. R. R.

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Sewak. She had also given an oral complaint against another

clerk, one Mr. M.H. Tanna, to the District Judge regarding his

misconduct, since he had demanded alcohol from an

accused, and remained drunk while he was on duty. She also

recorded that Mr. Tanna threatened her that she was on

probation, and if she did not toe his line, she would not be

confirmed. She recorded that this very person was an

accused in another case under Section 302 of I.P.C, and at

that time he was enlarged on bail, but subsequently had

come to be convicted by judgment and order dated 4.9.2006

passed by the Sessions Judge, Junagadh.

12. Thereafter, the respondent recorded in that letter,

that she had reported to the then District Judge, Mr. B.U. Joshi

that despite her warning time and again, the above referred

three persons used to come in a drunken state to the court

premises, and used to threaten her by calling names in

vulgar Gujarati slang. She had given a written complaint,

dated 3.2.2007, against Mr. R.R. Sevak and night watch-man

Mr. V.B. Solanki, to the District Judge who succeeded Mr. B.U.

Joshi. In view of her complaint, the said Mr. Solanki was

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transferred from the post of night watchman, but still at night

time he used to come without her permission outside her

residence in a drunken state along with some advocates.

The advocates also used to send their clients in a drunken

state to her residence. Having been made to face such

hostility from a few members of the bar and the criminal

elements in the staff, she asked: ‘In the face of such hostile

members of the bar and the criminal members (of the staff)

can an unmarried woman be safe?’ She had been given no

protection despite all these hardships, and yet she continued

to do her best, but in return had been served with the order

of termination. She specifically stated that the vigilance

officer of the High Court Mr. B.U. Joshi, who was the earlier

District Judge of Junagadh, had protected and encouraged the

staff members against whom she had made complaints, and

had therefore, made adverse remarks in the year 2006. In

any case, she pointed out that those adverse remarks were

contrary to the material on record.

13. By the time of sending of this reply, the respondent

had come to know that the officer conducting the inquiry, had

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given credence to an allegation of her being involved with

one Mr. N.P. Thakkar, who was also a trainee Judge alongwith

her at Rajkot. Hence, by way of caution, sensing that the

action against her had perhaps been taken due to those

allegations, she explained her position in that behalf. She

accepted that sometimes she did discuss legal problems with

her senior judges and co-trainee judges like Mr. Thakker.

Sometimes such discussions lasted for some longer time, but

that was all. After her joining as Civil Judge, at Kodinar she

had never met Mr. Thakker, who was posted as the Civil

Judge and JMFC, at Jetpur. Unfortunately, it so happened that

the wife of Mr. Thakker committed suicide on 1.1.2007, and

her mother lodged an F.I.R at Jetpur against Mr. Thakker, for

the offences under Section 498 A, 306, 114 of I.P.C read with

Section 3 & 7 of the Dowry Prohibition Act, 1961. In that

F.I.R, a doubt was raised regarding the involvement of Mr.

Thakker with another woman. The name of the respondent

was not mentioned therein but the local daily newspapers of

Saurashtra blamed the respondent for the incident, and

damaged her reputation, as if she was responsible for that

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incident. Thereafter, the respondent specifically stated in her

reply that Vigilance Officer had made a one-sided report, and

had not heard her, as well as majority of the members of the

bar, regarding the allegations against her. It is on the basis

of such a prejudiced report that her probation period was

being terminated.

14. In her letter the respondent specifically asserted as

follows and it is relevant to quote:-

“I have proved my mettle and potential in the face of hostile staff and some members of the Bar, and in the face of hostile male dominant society, and in the face of dishonest yellow journalism.”

The respondent therefore, requested that her case be

reviewed, and sought reinstatement with continuity,

backwages, and consequential benefits.

15. The aforesaid representation was however not

considered, and that led her to file a Writ Petition in the High

Court. The appellants filed a reply and vigorously contested

the Writ Petition. The High Court on the judicial side however

held that the termination of the respondent was in breach of

Article 311, inasmuch as she was not informed of the charges

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against her, nor was she given the opportunity of being heard

in respect thereof. The Court held that, this was not a case of

termination simpliciter of a probationary officer, and

therefore, set-aside the termination of her services, and

directed her reinstatement with backwages. It is this order

which is under challenge in the present matter. Mr. Preetesh

Kapur, learned counsel has appeared for the appellants, and

Mr. R.P. Bhatt learned senior counsel has appeared for the

respondent.

Consideration of the material on record:-

16. When we go through the record, one thing is clear

that the High Court administration first conducted a discreet

inquiry against the respondent, and thereafter another

inquiry called as preliminary inquiry. The initial discreet

inquiry was conducted by the then District Judge, Junagadh,

Mr. Kothari, whereas the subsequent inquiry, was conducted

by Mr. B.U. Joshi, who had by that time become the then

Registrar (Vigilance). It is material to note that same Mr. B.U.

Joshi was the District Judge when the respondent made her

initial complaints about the behaviour of her subordinate staff

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that they were not working properly, and Mr. Joshi had not

taken any action on those complaints. Instead, he made

certain adverse remarks on her personal characteristics with

respect to politeness and courtesy that it required

improvement. Therefore, in view of his association with the

controversy at an earlier stage as the District Judge, the

minimum that was expected of Mr. B.U. Joshi was to recuse

himself from the preliminary inquiry. The impugned judgment

has, therefore, characterized him, in para 12.16 thereof, as

being prejudiced even before the initiation of the preliminary

inquiry. It is the report of this preliminary inquiry which has

led to the termination of the probation period of the

respondent as unsatisfactory. It is also material to note that

during this preliminary inquiry, Mr. B.U Joshi, in his capacity

as the Registrar (Vigilance), did not call those persons to give

evidence who had given statements in favour of the

respondent during the discreet inquiry. This included her

peon and senior staff members. What is quite relevant to

note is that the earlier mentioned Mr. Sewak, who did not get

along with the respondent, had given a statement in support

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of her during the course of the discreet inquiry. Not less than

38 advocates had given a statement in her favour, and

pointed out that her performance was in fact good, and also

that there were no behavioral problems with respect to her

functioning. If this information was available to Mr. B.U. Joshi

as the Registrar (Vigilance), through the report of the discreet

inquiry, which was conducted by the then District Judge Mr.

Kothari, it was expected of him to verify that material by

calling the persons concerned, and recording their

statements. The impugned judgment has noted this one-

sided approach of the Registrar (Vigilance), and called it as

biased. The preliminary inquiry laid an emphasis on the fact

that the respondent used to talk to the aforementioned Mr.

Thakker on telephone, and that those talks had crossed the

prescribed limit. The impugned judgment records that it is

not uncommon for a colleague to talk to another colleague,

and merely because one colleague is male and the other is

female, it is no reason to suspect that permissible lines had

been crossed and then to draw an adverse inference against

the character of the lady Judge.

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17. What is most significant to note is that the inquiry

report, has referred to the suicide by the wife of Mr. Thakker,

and it contains certain observations involving the respondent

as follows:-

“Thereafter, it was respectfully submitted by the Registrar (Inspection) to the Hon’ble the Chief Justice and the Hon’ble Mr. Justice A.M. Kapadia that, in connection with the suicide committed by Smt. Archana w/o Mr. N.P. Thakker, Addl. Civil Judge & JMFC, Jetpur, the mother of the deceased has lodged the complaint bearing C.R. No.I/9/07 with Jetpur City Police Station against Mr. N.P. Thakker and his family members. It is alleged in the said complaint that due to illicit relations between Mr. N.P. Thakkar and Ms. JC Buddhabhatti Smt. Archana has committed suicide.”

18. What is rather disturbing is that no such material

was produced before the High Court involving the name of

the respondent. On the other hand, Shri R.P. Bhatt, learned

senior counsel appearing for the respondent, has drawn our

attention to the deposition of the mother of the deceased in

the Criminal Case concerning the death of the wife of Mr. N.P.

Thakker. She has not named the respondent therein.

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19. The question, therefore, comes for consideration,

as stated earlier, as to whether this is a case of termination

simpliciter of the services of a probationer on account of her

unsuitability for the post that she was holding, or whether it

is a termination of her services after holding an inquiry

behind her back, and without giving her an opportunity to

defend.

20. The legal position in this behalf has evolved over

the years, and there are numerous judgments which govern

this kind of a situation in the light of Article 311 (2) of the

Constitution, which have been pronounced from time to time

over the years. The learned counsel for the appellants as

well as for the respondent have drawn our attention to the

relevant judgments holding the field, and we shall refer to the

salient ones amongst them.

Legal submissions of behalf of the appellants:-

21. The principal submission on behalf of the

appellants has been that this is a case of termination

simpliciter of the services of a probationer during the

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extended period of probation, without any stigma attached,

and therefore, the High Court, on the judicial side, had no

reason to interfere. The initial discreet inquiry, and the

subsequent preliminary inquiry were both for the purpose of

ascertaining the suitability of the respondent, and not for

establishing any allegations against her. If that is so, they

submit, that there was no reason for the High Court on the

judicial side to interfere in the decision arrived at by the High

Court administration, to discontinue the services of the

respondent on the ground of unsuitability. The appellants

thus relied upon a judgment of this Court in Oswal Pressure

Die Casting Industry v. Presiding Officer reported in

1998 (3) SCC 225. In that matter, it was held that once it

was found that the assessment made by the employer was

supported by some material and was not mala-fide, it was not

proper for the High Court to substitute its satisfaction in place

of that of the employer. Reliance was also placed on the

judgment in Radhey Shyam Gupta v. U.P. State Agro

Industries Corporation Ltd. reported in 1999 (2) SCC 21,

which is a case wherein it is held that if a regular

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departmental inquiry is started, a charge memo is issued,

reply obtained, and an inquiry officer is appointed, and

thereafter also if the inquiry is dropped and a simple notice of

termination is issued, even than the action will not be held to

be punitive.

22. Lastly, the judgment of this Court in High Court of

Judicature at Bombay v. Sashikant S. Patil and Anr.

reported in AIR 2000 SC 22 (equivalent to 2000 (1) SCC

416), was relied on, where this Court has held that when a

constitutional function was exercised on the administrative

side of the High Court, any judicial review thereof, should be

made with great care and circumspection, and confining

strictly to the parameters set by this Court in the decisions

holding the field.

Submissions of behalf of the respondent:-

23. The respondent relied upon the law laid down from

Parshotam Lal Dhingra v. Union of India reported in AIR

1958 SC 36 onwards. In that case it was held by the

constitution bench that if the Government has, by contract or

under the rules, the right to terminate the employment

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without going through the procedure prescribed for inflicting

the punishment of dismissal or removal or reduction in rank,

the Government may choose to punish the servant, and if the

termination of service is sought to be founded on

misconduct, negligence, inefficiency or other disqualification,

then it is a punishment, and the requirements of Article 311

must be complied with.

24. The next judgment cited is one of three Judges of

this Court in State of Bihar and Ors. v. Shiva Bhikshuk

Mishra reported in 1970 (2) SCC 871 wherein it is

observed as follows:-

“5. ….. So far as we are aware no such rigid principle has ever been laid down by this court that one has only to look to the order and if it does not contain any imputation of misconduct or words attaching a stigma to the character or reputation of a Government Officer it must be held to have been made in the ordinary course of administrative routine and the court is debarred from looking at all the attendant circumstances to discover whether the order had been made by way of punishment……”

These judgments have been followed by a bench of seven

Judges in Shamsher Singh v. State of Punjab & Anr.

reported in AIR 1974 SC 2192 (equivalent to 1974 (2) SCC

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831), where this Court was concerned with the termination

of the services of a probationary judicial officer on the basis

of a vigilance inquiry, which was conducted by the State

Government on the request of the High Court. The Court

held the termination to be bad, and while doing so laid down

the law in this behalf in no uncertain terms in paragraphs 63

to 66 (of the SCC report) which read as follows:-

“63. No abstract proposition can be laid down that where the services of a probationer are terminated without saying anything more in the order of termination than that the services are terminated it can never amount to a punishment in the facts and circumstances of the case. If a probationer is discharged on the ground of misconduct, or inefficiency or for similar reason without a proper enquiry and without his getting a reasonable opportunity of showing cause against his discharge it may in a given case amount to removal from service within the meaning of Article 311(2) of the Constitution.

64. Before a probationer is confirmed the authority concerned is under an obligation to consider whether the work of the probationer is satisfactory or whether he is suitable for the post. In the absence of any rules governing a probationer in this respect the authority may come to the conclusion that on account of inadequacy for the job or for any temperamental or other object not involving moral turpitude the probationer is unsuitable for the job and hence must be discharged. No punishment is involved in this. The authority may in some cases be of the view that the conduct of the probationer may result in dismissal

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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. In Gopi Kishore Prasad v. Union of India1 it was said that if the Government proceeded against the probationer in the direct way without casting any aspersion on his honesty or competence, his discharge would not have the effect of removal by way of punishment. Instead of taking the easy course, the Government chose the more difficult one of starting proceedings against him and branding him as a dishonest and incompetent officer.

65. 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 Das2). 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 Punjab3). In R.C. Lacy v. State of Bihar4 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) (see R.C. Banerjee v. Union of India5). A preliminary inquiry to satisfy that there was reason to dispense with the services of a temporary employee has been held not to attract Article 311

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(see Champaklal G. Shah v. Union of India6). On the other hand, a statement in the order of termination that the temporary servant is undesirable has been held to import an element of punishment (see Jagdish Mitter v. Union of India7). 66. 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 Maharashtra8)”

25. These propositions have been reiterated in a

number of judgments thereafter, and the counsel for the

respondent referred to Anoop Jaiswal v. Govt. of India

reported in 1984 (2) SCC 369, where this Court held that,

the Court can go behind the formal order of discharge to find

out the real cause of action. In that matter, the order of

discharge of the probationer on the ground of unsuitability

was actually based upon the report/recommendation of the

concerned authority indicating commission of an alleged

misconduct by the probationer. The Court held that the order

was punitive in nature, and in the absence of any proper

inquiry it amounted to violation to Article 311 (2) of the

Constitution of India.

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1. AIR 1960 SC 689: (1960) 2 SCR 982: (1960) 1 Lab LJ 262

2. (1961) 1 SCR 606: AIR 1961 SC 177: (1961) 1 SCJ 209

3. (1963) 3 SCR 716: AIR 1963 SC 531: (1963) 2 SCJ 185

4. Civil Appeal No. 590 of 1962, decided on October 23, 1963

5. (1964) 2 SCR 135: AIR 1963 SC 1552: (1964) 1 SCJ 578

6. (1964) 5 SCR 190: AIR 1964 SC 1854: (1964) 1 Lab LJ 752

7. AIR 1964 SC 449: (1964) 1 Lab LJ 418

8. 1971 Supp SCR 118: (1971) 1 SCC 790

At the end of paragraph 13 of the judgment this Court

observed as follows:-

“13……..Even though the order of discharge may be non-committal, it cannot stand alone. Though the noting in the file of the Government may be irrelevant, the cause for the order cannot be ignored. The recommendation of the Director which is the basis or foundation for the order should be read along with the order for the purpose of determining its true character. If on reading the two together the Court reaches the conclusion that the alleged act of misconduct was the cause of the order and that but for that incident it would not have been passed then it is inevitable that the order of discharge should fall to the ground as the appellant has not been afforded a reasonable opportunity to defend himself as provided in Article 311 (2) of the Constitution.”

26. The propositions in this behalf, as to what

constitutes a motive, and what constitutes a foundation for

the action were once again crystallized in the judgment of

this Court in Chandra Prakash Shahi Vs. State of U.P. &

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Ors. reported in 2000 (5) SCC 152, where in paragraph 28

and 29 of the judgment of this Court laid down the relevant

propositions which are as follows:-

“28. The important principles which are deducible on the concept of “motive” and “foundation”, concerning a probationer, are 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 the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of ”motive”.

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? 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

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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.”

27. Our attention was drawn to a judgment of a Bench

of three Judges of this Court in Union of India & Ors. v.

Mahaveer C. Singhvi reported in 2010 (8) SCC 220,

where a probationer was discharged from his services. The

findings were arrived at against him behind his back as

recorded in paragraph 46 of the judgment, and although the

termination was claimed to be a termination simpliciter, the

High Court had found that it was a camouflage for the real

intention of the petitioners. This Court upheld the judgment

of the High Court, following the law laid down from time to

time as aforesaid, and held that if a finding against a

probationer is arrived at behind his back on the basis of the

inquiry conducted into the allegations made against him, and

if the same formed the foundation of the order of discharge,

the same would be bad and liable to be set aside. On the

other hand if no inquiry was held or contemplated, and the

allegations were merely a motive for the passing of an order

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of discharge of a probationer without giving him a hearing,

the same would be valid. The facts of that case were held as

not falling under the latter category, and it is submitted that

the present case also does not fall under that category.

Consideration of the legal submissions:-

28. Having gone through the salient judgments on the

issue in hand, one thing which emerges very clearly is that, if

it is a case of deciding the suitability of a probationer, and for

that limited purpose any inquiry is conducted, the same

cannot be faulted as such. However, if during the course of

such an inquiry any allegations are made against the person

concerned, which result into a stigma, he ought to be

afforded the minimum protection which is contemplated

under Article 311 (2) of the Constitution of India even though

he may be a probationer. The protection is very limited viz.

to inform the person concerned about the charges against

him, and to give him a reasonable opportunity of being

heard. Having noted the facts as they have emerged on the

record, can the preliminary inquiry conducted against the

respondent in the present case be said to be an innocent one

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only to assess her suitability? Is it not apparent that certain

aspersions were cast on the character of the respondent

during the course of the conduct of this inquiry on her

suitability? If that was so, was it not expected from a High

judicial institution like the High Court to afford her the

minimum opportunity to defend herself? In Shamsher

Singh (supra) this Court has observed that the Subordinate

Judges are under the care and custody of the High Court. This

custody and care certainly requires the High Court to afford

the Subordinate Judges the minimum opportunity which is

otherwise available to every other civil servant under Article

311 (2).

29. Having noted the aforesaid legal position, we must

pay heed to the lament of this Court as expressed in the case

of Ishwar Chand Jain v. High Court of Punjab &

Haryana and Ors. reported in 1988 (3) SCC 370. In that

matter, the probationary service of an Additional District and

Sessions Judge was terminated on the basis of High Court’s

conclusion regarding suitability. This Court, however, found

that the action taken against the appellant was basically

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because of some grievances made by the members of the

Bar, and there was no justifiable material available on the

record of the Court. The members of the Bar Association had

passed a resolution condemning him on a trifling matter, as

observed by this court. This Court observed in the end of

paragraph 7 in following words:-

“7. …….If the members of the Bar Association pass resolution against the presiding officers working in subordinate courts without there being any justifiable cause it would be difficult for judicial officers to perform their judicial functions and discharge their responsibilities in an objective and unbiased manner. We are distressed to find that the High Court instead of protecting the appellant took this incident into consideration in assessing the appellant’s work and conduct.”

In this matter, the Bar Association passed a resolution

against the Additional Sessions Judge for not detaining a

witness on the request of the counsel for the party to enable

him to bring summons for effecting service on him, without

there being any requisition from the court of the Chief Judicial

Magistrate. This Court noted that if such resolutions are

passed, it will be difficult for the judicial officers to perform

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their function in an objective and unbiased manner. This

Court was constrained to observe that the High Court had

failed to protect the appellant. What had distressed this

Court was that the High Court, instead of protecting the

appellant had taken into account the unjustified allegation

made by the bar, while assessing the work and conduct

leading to discontinuation of his probation services. The

same appears to be the situation in the present case.

30. Shashikant Patil (supra) was altogether a

different case. That was a matter where a full-fledged

departmental inquiry was conducted against the respondent.

It is true that the inquiry report had exonerated the

respondent, and the disciplinary committee had reversed

that decision. The High Court on the judicial side had

interfered with the decision of the disciplinary committee. It

is this decision of the High Court which came to be upturned

in this case, and it was in this context that this Court

observed: “when such a constitutional function was exercised

by the administrative side of the High Court, any judicial

review thereon should have been made not only with great

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care and circumspection, but confining strictly to the

parameters set by this Court.” The present case can not be

said to be one where the High Court on judicial side has erred

as in Shashikant Patil (supra) in exercising its powers as

claimed by the appellants.

31. As held by this Court time and again, it is the

responsibility of the High Court to protect honest judicial

officers. As the facts in this case indicate, apart from the fact

that no opportunity was afforded to the respondent, even the

material placed on record did not establish any such aspect

which would lead to a conclusion of unsuitability. The

disposal of the respondent was very good, and the

complaints by the subordinate staff were clearly motivated.

There was no involvement of the respondent in the suicide by

the wife of Shri N.P. Thakker, and all that the High Court

administration could lay hand on was the telephonic

conversations which the respondent had with Mr. Thakker.

The inference of unsuitability drawn by the High Court

administration was therefore totally uncalled for. The

impugned judgment setting aside the termination order

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dated 14th December 2007 issued on the ground of

unsuitability is, therefore, fully justified.

32. One of the submissions which was advanced on

behalf of the appellants was that, in such a situation the High

Court, on its judicial side, ought to have given a further

opportunity to the High Court administration to conduct a

further inquiry against the respondent. In our view, keeping

in mind the material on record, such a further exercise was

not called for, and in any case certainly no more. The

services of the respondent have been terminated way back in

2007. Six long years have gone thereafter, and for no fault of

hers, the respondent has suffered. Directing any further

inquiry would add salt to the injury. The conclusion arrived at

by the High Court administration that the performance of the

respondent was not good and satisfactory, and that she was

not suitable for the post she was holding was on the face of it

for extraneous reasons. Consequently with a view to do

complete justice, the Respondent will have to be held as

having completed her probation satisfactorily, and that she

was entitled to continue in the post that she was holding.

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33. We may however, note that in spite of this

position, Mr. R.P. Bhatt, learned senior counsel appearing for

the respondent has stated that though the decision of the

High Court administration has seriously affected her personal

life, the respondent is basically interested in vindicating her

position. He has, therefore, fairly made a statement, on

instructions, that the respondent is confining her prayer for

backwages to the period subsequent to her being vindicated

by the judgment of the High Court, dated 15.5.2009

pronouncing that the termination of her services was

unjustified, and bad in law.

34. Before we conclude, we must once again reflect on

the facts that have emerged in the present case. As noted

earlier, the respondent was a candidate who had obtained a

high rank in the selection for the judicial service, and was

given an independent posting in a rural area, where she was

living all alone. Her disposal of cases had been very good to

say the least. The complaints made by her, regarding the

misbehaviour of the staff, and the harassment to her by a

section of the bar, were not heeded by the then District

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Judge, leave aside making an attempt to understand the

difficulties faced by her. Instead, certain unjustified adverse

remarks were made against her. Subsequently, the then

District Judge conducted the preliminary inquiry against her,

in his capacity as the vigilance officer, wherein without any

justification he tried to connect her with the death of the wife

of another judicial officer. It is the duty of the District Judge

and also of the High Court to protect the judicial officers

against unjustified allegations. However, what we find in the

present case is that instead of doing the same, an

investigation was conducted against the respondent without

affording her any opportunity, though it contained allegations

against her character, and the investigation was sought to be

justified as determination of her suitability for the post which

she was holding. We would like to take this opportunity to

emphasise that the High Courts must see to it that the hostile

work environment for junior judicial officers, particularly the

lady officers, is eliminated. This is necessary to encourage

the young officers to put in good judicial work without fear or

favour. We are constrained to say that in the present case

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the High Court administration has clearly failed in this behalf.

In the circumstances, we have no reason to interfere in the

judgment and order of High Court and we confirm the same.

35. Hence, we pass the following order:-

(i) The appeal is dismissed without any order as to the

costs.

(ii) The respondent is held to have completed her probation

satisfactorily. The appellants are directed to reinstate the

respondent in her service with continuity and all

consequential benefits. She will be entitled to her seniority

as if she was never terminated from her service. The order of

reinstatement and posting will be issued within four weeks

from today.

(iii) The respondent will be entitled to the backwages.

However, the backwages payable to her are restricted to the

period subsequent to the decision of the High Court dated

15.5.2009. She will be given a fitment in salary on the basis

of her continuity in services, and the backwages will be

calculated and paid accordingly.

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(iv) We direct the appellants to make the fitment in salary

and calculate and pay the backwages within 8 weeks

hereafter.

…………………………………..J. [ H.L. Gokhale ]

……………………………………J. [ Dipak Misra ]

New Delhi Dated : October 22, 2013

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REGISTRAR GENERAL Vs JAYSHREE CHAMANLAL BUDDHBHATTI

REGISTRAR GENERAL Vs JAYSHREE CHAMANLAL BUDDHBHATTI