- (1.) THE petitioner who was appointed as Additional District & Sessions Judge in the Rajasthan Higher Judicial Services on probation, seeks to quash the order dated October 7, 1998 of the State of Rajasthan whereby services of the petitioner have been dispensed with.
(2.) CONTEXTUAL facts depict that appointment of the petitioner on the post of Additional District and Sessions Judge was made for a period of two years vide order dated August 2, 1996 and this probation period was further extended upto October 9, 1998. The order which is under challenge reads as under:- "WHEREAS Smt. Usha Dubey was appointed by direct recruitment in the Rajasthan Higher Judicial Service as Additional District & Sessions Judge on probation for a period of two years vide Government Order No. F.19(1) (11) Jud/90 dated 02.8.96 and his probation period was subsequently extended upto 09-10-98 vide Government Order No. F.19(11)/90 dated 29.8.98. AND WHEREAS the Rajasthan High Court, Jodhpur, after perusing all the relevant record, has resolved that Smt. Usha Dubey has not made sufficient use of his opportunities and has otherwise also failed to give satisfaction as a probationer in the Rajasthan Higher Judicial Service. AND WHEREAS the Rajasthan High Court has recommended under Rule 26(1) of the Rajasthan Higher Judicial Service Rules, 1969 that the services of Smt. Usha Dubey be dispensed with, with effect from 09.10.98. NOW, therefore, the Governor of the State in consultation with the Rajasthan High Court is hereby pleased to dispense with the services of Smt. Usha Dubey with effect from the afternoon of 09.10.98 under Rule 26(1) of the Rajasthan Higher Judicial Service Rules, 1969." It is the petitioner's case that though the impugned termination order appears to be innocuous, it is still punitive in nature in as much as it is based on exparte enquiry reports. The petitioner also raises a plea of malafides against Shri Chandra Singh, District Judge Pratapgarh, who allegedly bore a grudge against the petitioner. Various details have been given to establish malafides and it is averred that the petitioner made several complaints against Sh. Chandra Singh to the Inspecting Judge and the Chief Justice. Contentions of answering respondents on the other hand are that preliminary enquiry was conducted to assess the work of the petitioner and there was no ill will against her. The instances of petitioner's unsatisfactory work have been incorporated in the reply thus:- (i) In the year 1996 she was not able to dispose of the cases assigned to her efficiently and she could only dispose of 82% work instead of 100%. She could not decide any Sessions case or regular civil suit in this year. (ii) In February, 1997 her court at Nimbahera was inspected by Hon'ble Mr. Justice R.R. Yadav, the Inspecting Judge and it was observed that she possesses average judicial temperament which required improvement, standard of her judgment was also found average and needed improvement. In the year 1997, the Reporting Officer (District Judge Pratapgarh) also found that she was neither fair nor impartial in her working, she was short tempered and she lacked control over her office. She also lacked control over proceedings in her court. She decided the cases arbitrarily and her judgments were found not reasoned on facts and law. It was also found that she used to move with Additional Public Prosecutor of her court in market and nearby towns, the Additional Public Prosecutor also used to visit her house in odd hours. The Reporting Officer also withheld her integrity certificate. In the year 1997 she was found a below average officer by the Reporting Authority. (iii) The Hon'ble Mr. Justice R.R. Yadav while making spot objective assessment of the petitioner on 9.2.1998 observed that the integrity of Smt. Usha Dubey is not sound, her conduct is not above board and her work is far from satisfactory. The remarks in the inspection report were conveyed to the petitioner and it was also found that she has not been able to make sufficient use of the opportunities and also failed to give satisfaction as a probationer in the Rajasthan Higher Judicial Service. In the probation period some complaints were also received against her regarding her way of working and the inspecting Judge warned her not to prepone the hearing of the cases without notice to other party. (iv) The Vigilance Registrar, Jodhpur also conducted a preliminary enquiry on a complaint received from Sujanmal against the petitioner. He after recording statement of number of witnesses opined that Mr. Shyam Sharma, Additional Public Prosecutor was a regular visitor at the residence of the petitioner and it caste a shadow on her functioning as Judicial Officer. In this respect Mr. Bhura Lal, Kalu, Puran Mal, Moti Lal Sharma, Kamla Bai had sent complaints against the petitioner about her working in the court. Comments were also called about some of the complaints from the petitioner. It is the plea of the answering respondents that the impugned order is simply an order of dispensing with the services of the petitioner under Rule 26 of the Rajasthan Higher Judicial Services Rules and same is not punitive. Mr. Paras Kuhad, learned counsel appearing for the petitioner canvassed that the facts mentioned in the writ petition and the various facts and allegations made in the representations addressed to Chief Justice and Inspecting Judge would clearly reveal that prima facie case has been made out for proving that the order of termination was passed by way of punishment and it is founded on a misconduct. The services of the petitioner have been terminated on the ground of misconduct or for determination of similar reasons without a proper enquiry and without providing reasonable opportunity to her amount the removal from service within the meaning of Article 311(2) of the Constitution. Learned counsel further contended that the allegations mentioned against the petitioner in answer to the challenge made by her cannot be made basis for holding that order is not punitive. Reliance is placed on Depti Prakash Benarji vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta (1), The Manager Govt. Branch Press and Anr. vs. D.P. Belliapa (2), Ishwar Chand Jain vs. High Court of Punjab (3), High Court of Judicature at Patna vs. Pandey Madan Mohan Pd. Sinha (4), Union of India vs. P.K. More (5), State of U.P. vs. Yamuna Shankar Mishra (6), U.P. Jal Nigam and Ors. vs. Prabhat Chandra Jai and Others (7), High Court of Punjab and Haryana through R.G. vs. Ishwar Chand Jain and Others (8), V.P. Ahuja vs. State of Punjab (9), Narsingh Pal vs. Union of India and Others (10), Pawanendra Narayana Verma vs. Sanjay Gandhi PGI Medical Sciences (11), Satya Narayan Athya vs. High Court of M.P. and Anr. (12), and H.F. Sangati vs. Registrar General, High Court of Karnataka (13). Per contra Mr. Prem Shanker Asopa, learned Senior Advocate contended that the probationer has no right to continue to hold the post. The fact of holding inquiry is not always conclusive. What is decisive is the substance of the order and not the form. The court can lift the veil to see the true nature of the order and further suspicion of misconduct is good ground to discharge the probationer. In case of determination for unsuitability of probationer principles of natural justice cannot be attracted. Consideration of complaints regarding integrity, character and morality of probationer does not show that order is punitive. It is further urged that in the instant case the object of the preliminary enquiry as well as inspection was for determination of suitability of a probationer and was for further retention and confirmation and the same was not for any misconduct. Allegations made against the petitioner in answer to the challenge made by her cannot be made basis for holding that order is punitive. Reliance is placed on Purshottam Lal Dhingra vs. Union of India (14), Shamsher Singh vs. State of Punjab and Another (15), Gujrat Steel Tubes Ltd. vs. Gujrat Steel Tubes Mazdoor Sabha (16), Radhey Shyam Gupta vs. U.P. State Agro Industries (17), Chandra Prasad Sahi vs. State of U.P. (18), U.O.I. vs. A.B. Bajpai and Others (19), Mathew Thomas vs. Kerala State Civil Services (20), and Anil Kumar Kaushik vs. State and Anr. (21).
(3.) THE meaningful questions that arise for our consideration in the instant case are:-(i) In what circumstances the termination of a probationer services can be said to be founded on misconduct. (ii) Can an order of termination of probationer be said to contain an express stigma. (iii) Can the stigma be gathered from the allegations made against the probationer in answer to the challenge made by him/her. It will be noticed from the decisions of the Apex Court that the termination of the services of an officer on probation, on the basis of adverse entries or on the basis of an assessment that his work is not satisfactory will not be punitive in as much as the above facts are merely the motive and not the foundation. The reason, why they are the motive, is that the assessment is not done with the object of finding out any misconduct on the part of the officer. Vide `State of Orissa vs. Ram Narayan Das' (22). It is done only with a view to decide whether he is to be retained or continued in service. The position is not different even if a preliminary enquiry is held because the purpose of a preliminary enquiry is to find out if there is a prima facie evidence or material to initiate a regular departmental enquiry vide `Champak Lal vs. U.O.I.' (23). The purpose of the preliminary enquiry is not to find out misconduct on the part of the office and if a termination follows without giving an opportunity, it will not be bad. The employer is entitled to say that he would not continue an employee against whom allegations are made the truth of which the employer is not interested to ascertain. In fact, the employer by opting to pass a simple order of termination as permitted by the terms of appointment or as permitted by the rules is conferring a benefit on the employee by passing a simple order of termination so that the employee would not suffer from any stigma which would attach to the rest of his career if a dismissal or other punitive order is passed. (Vide `Gujrat Steel Tubes Ltd. vs. Gujrat Steel Tubes Mazdoor Sabha' (supra),). But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer, and where on the basis of such a report, the termination order is issued such an order will be violative of the principles of natural justice in as much as the purpose of enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive (Vide `Radhey Shyam Gupta vs. U.P. State Agro Industries' (supra). Coming now to the facts of the case before us, we find that the object of the preliminary enquiry as well as inspection was to determine the suitability of the petitioner who was a probationer, for her further retention and confirmation in the service. Consideration of complaints regarding integrity, character and morality of probationer does not render the order punitive. The decision to dispense with the services of the petitioner was taken by the High Court after considering the entries in the service record of the petitioner covering the entire period of probation. It cannot be inferred that the decision of High Court was based on any particular act of misconduct. Remarks of the Inspecting Judge and the report of the preliminary enquiry conducted by Vigilance Registrar were taken into consideration for assessing the performance of petitioner during the period of probation and for determining whether she was fit for confirmation on the post of Additional District and Sessions Judge. We find ourselves unable to hold that the order to dispense with the services of the petitioner was passed by way of punishment for misconduct. ;