RAJESH KUMAR SRIVASTAVA Vs STATE OF JHARKHAND .
Bench: MUKUNDAKAM SHARMA,ANIL R. DAVE, , ,
Case number: C.A. No.-002419-002419 / 2011
Diary number: 22970 / 2008
Advocates: PRAMOD DAYAL Vs
RATAN KUMAR CHOUDHURI
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2419 OF 2011 [Arising out of S.L.P (C) No. 8463 of 2009]
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.
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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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