M.KARPAGA VINAYAGAM, C.J. - (1.) RAJESH Kumar Srivastava, on being aggrieved by the order dated 31.7.2003 removing him from the service as Probationer Munsif, has filed this writ petition, seeking for quashing of the said order and for consequential direction to reinstate him with all consequential benefits.
(2.) THE short facts are as follows: (A) The petitioner applied for the post of Munsif and consequently appeared in Pre -test, Main Test and interview conducted by the High Court. He was declared successful in the year 2001. Thereafter he attended the Orientation Course. On 21.5.2002, notification was issued by the Government of Jharkhand, appointing him as Probationer Munsif. On 23.5.2002, he was posted at Dhanbad by the notification issued by the High Court. On 4.6.2002. he assumed the charge as Probationer Munsif at Dhanbad. On 15.7.2002, he was conferred with the power of Judicial Magistrate 1st class. On 6.1.2003, he, acting as Judicial Magistrate 1st class, Dhanbad, passed an order discharging all the accused under Section 239, CrPC in G.R. No. 4698 of 1995 under Sections 406, 408, 420 and 120B. IPC without conducting trial. (B) A complaint from one Ram Kumar was received by the High Court on 4.3.2003, stating that the petitioner had discharged the accused persons despite rejection of revision application by the High Court earlier, for extraneous consideration. Thereupon the High Court called for the report from the District and Sessions Judge. On the basis of the direction, the District and Sessions Judge, Dhanbad, sent a letter to the petitioner, directing him to offer his remarks to him (District and Sessions Judge). (C) Accordingly, remarks were sent. Thereafter, remarks and report along with confidential report were submitted by the District and Sessions Judge, Dhanbad, before the High Court. On 28.4.2003, Hon'ble Zonal Judge was pleased to refer the matter to the Standing Committee for further action. The matter was considered in the meeting of the Standing Committee held on 8.7.2003. After perusal of the remark and reports, the Standing Committee referred the matter to the Full Court for consideration as to whether the service of the petitioner was required or not. On 18.7.2003, the matter was considered in the meeting of the Full Court. After considering the report and performance of the Officer and quality of his Judgments, it was resolved that continuation of the service of the petitioner was no longer required. Accordingly the same was intimated to the Government. Then the Government, by the impugned order dated 31.7.2003, issued a notification removing the petitioner from the service in public interest with effect from 31.7.2003. Challenging the same, the petitioner has filed the present writ petition. The learned Counsel for the petitioner would submit: The impugned order dated 31.7.2003 clearly makes it ex facie stigmatic and punitive. The order indicates that it was founded upon consideration of his activities that the service of the petitioner was no longer required in public interest. If an order is stigmatic and punitive and not simplicitor, enquiry under Article 311(2) of the Constitution is necessary. In this case, there is no enquiry by which opportunities have been given to the petitioner. Therefore, the order has been passed in violation of the principles of natural justice. Since the impugned order was founded on allegation, it is vitiated because no enquiry was conducted. Further ACR was prepared by the District and Sessions Judge with a view to removing the petitioner and the said ACR. which was not communicated, has been used against him. This is against law. Therefore, the impugned order is liable to be set aside.
(3.) THE reply to the above submission made by the learned Counsel appearing for the respondent -High Court in brief is as follows: The impugned order is neither stigmatic, nor punitive. Therefore, principles of natural justice has no application. Uncommunicated remarks in service records could be taken into consideration in the case of a probationer, while scrutinizing the suitability of the petitioner regarding continuation of his service. The case of the petitioner was referred by the Standing Committee to the Full Court for specific consideration and decision whether continuation of the service of the petitioner was required or not. Accordingly, the Full Court considered that his service was no longer required and as such, the impugned order has been passed in public interest and not by way of punishment.;