ABHAY JAIN versus THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AND ANR

[2022] 16 S.C.R. 693

ABHAY JAIN

THE HIGH COURT OF JUDICATURE FOR RAJASTHAN ANDANR.

(Civil Appeal No. 2029 of 2022)

MARCH 15, 2022

[UDAY UMESH LALIT AND VINEET SARAN, JJ.]

Judicial Service – Rajasthan Judicial Service Rules, 2010 –rr.45 and 46 – Entitlement to protection u/Art.311 of the Constitution– Bail order dated 27.04.2015 passed by Appellant-judicial officerin favour an accused in case under Prevention of Corruption Actbecame genesis of action taken against him – Departmental enquiryinstituted against him u/r.16 of Rajasthan Civil Services(Classification, Control and Appeal) Rules, 1958 for acts amountingto misconduct and violation of rr.3 and 4 of the Rajasthan CivilServices (Conduct Rules), 1971 – Allegation leveled that appellantpassed the bail order with ulterior or oblique motives and forextraneous considerations – Appellant submitted preliminaryobjections to the allegations, which came to be rejected by theEnquiry Judge – Meanwhile, Higher Judicial Committee, constitutedfor deciding confirmation and discharge of Judicial Officers, uponinspection of appellant’s records, decided not to recommend theappellant for confirmation – Subsequently, Full Court meetingwas convened wherein, based on recommendation submitted by theHigher Judicial Committee, it was decided to discharge the appellant– Appellant was thus discharged despite pendency of enquiryproceedings against him – Discharge order was passed against theappellant on ground that the Full Court found the appellant’sservices to be unsatisfactory during probation – Subsequently,enquiry as well as disciplinary proceedings initiated against theappellant were closed – Writ petition filed by appellant dismissedby High Court – On appeal, held: There was no material to showcaseunsatisfactory performance of appellant in terms of requirement u/rr.45 and 46 of the RJS Rules, 2010 – Moreover, appellant’sdischarge was not simpliciter, as claimed by the respondent – Non-communication of ACRs to the appellant was proved to be arbitraryand since respondent choose to hold enquiry into appellant’s alleged

Amisconduct, the termination of his service was by way of punishmentbecause it put stigma on his competence and thus affected hisfuture career – In such case, the appellant would be entitled toprotection of Art.311(2) of the Constitution – Moreover, adversecomments in ACR for the year 2015 could not have been the basison which appellant was discharged from service – Appellant wasBnever granted opportunity to improve and there was no intimationto him about his performance being unsatisfactory – Importantly,no verifiable complaint was filed against the appellant that couldform the basis of disciplinary proceedings against him – Appellantwas competent to pass the bail order dated 27.04.2015 andCRespondent was not able to prove presence of any extraneousconsideration or ulterior motive on the part of the appellant – Alsoneither the bail order dated 27.04.2015 was ever challenged by theState before any Court of law, nor was any complaint receivedagainst the appellant regarding the said bail order – This is not thecase where there were strong grounds to suspect the appellant’sDbona fides – Even if appellant’s act was considered to be negligent,it cannot be treated as “misconduct” – The discharge order isaccordingly quashed – Keeping in view that the appellant had notworked as judicial officer after he was discharged, he be reinstatedwith all consequential benefits including continuity of service andEseniority, but with only 50% backwages – Constitution of India,1950 – Art. 311.

Service Law – Judicial Service – Every judicial officer is likelyto commit mistake of some kind or the other in passing orders in theinitial stage of his service, which mature judicial officer wouldFnot do – However, if the orders are passed without there being anycorrupt motive, the same should be over-looked by the High Courtand proper guidance should be provided to him.

Service Law – Judicial Service – Merely because wrongorder has been passed by the appellant-judicial officer or the actionGtaken by him could have been different, this does not warrantinitiation of disciplinary proceedings against the judicial officer.

Service Law – Judicial service – Negligence vis-a-vismisconduct – On facts, appellant-judicial officer, while passing thebail order, may have been guilty of negligence in the sense that heHdid not carefully go through the case file and did not take notice of

the order of the High Court which was on his file – This negligencecannot be treated to be misconduct.

Service Law – Misconduct – Mere suspicion cannot constitute“misconduct” – Any ‘probability’ of misconduct needs to besupported with oral or documentary material.

Service Law – Judicial service – Relief-oriented judicialapproaches cannot by themselves be grounds to cast aspersions onthe honesty and integrity of an officer.

Allowing the appeal, the Court

HELD: 1. The submission of the respondent that thedischarge of the appellant was discharge simpliciter and notviolative of Article 311(2) of the Constitution of India is not worthyof acceptance. The High Court erred in holding that the dischargeorder of the appellant was simpliciter order and not punitive innature. In spite of observing that the order of discharge had beenpassed on account of inquiry initiated against the appellant, theHigh Court failed to provide any reasoning as to how theallegation of misconduct pertaining to the bail order was not thefoundation of the order of discharge. [Para 41][719-E-F]

2. The material placed before the Higher JudicialCommittee [consisting of five Judges and constituted for decidingthe confirmation and discharge of Judicial Officers] whichrecommended the discharge of the appellant, clearly shows thatno adverse remarks were made against the appellant except inrelation to the grant of bail on 27.04.2015. [Para 43][719-H]

3. To argue that the comments and observations in the 2015ACR of the appellant were the basis on which he was discharged,is misplaced and erroneous. Firstly, bare perusal of the ACRreveals that the top of this ACR itself carried comment thatread “Discharged from Service”. Secondly, the Higher JudicialCommittee had, even prior to the submission of the 2015 ACR,already recommended the discharge of the appellant. Notably,the ACR for the year 2015 was filled and submitted by theappellant on 20.01.2016, while the Higher Judicial Committeehad already recommended the discharge of the appellant on

A24.11.2015 itself and the impugned order of discharge was passedon 27.01.2016, admittedly, in pursuance of Full Court meetingon 20.01.2016. Additionally, although the respondent hadsubmitted that the Integrity Certificate of the Appellant waswithheld by the Inspecting Judge, he failed to highlight that thereason for the certificate being withheld was that the appellantBhad been served with chargesheet and not because of theappellant’s service record. [Para 46][720-G-H; 721-A-C]

4. Moreover, the ACRs were not communicated to theappellant within reasonable time. The non-communication of theACRs to the appellant in the present case is arbitrary and suchCarbitrariness violated Article 14 of the Constitution of India. [Para47][721-C, G-H]

5. Since the Government had, on enquiry, come to theconclusion, rightly or wrongly, that the appellant was unsuitablefor the post he held on probation, this was clearly by way ofDpunishment and, hence, the appellant would be entitled to theprotection of Article 311(2) of the Constitution. Moreover, in thefacts and circumstances of the present case, the substance of thetermination order reveals that the discharge was by way ofpunishment. Hence, the question that whether the action of non-Econfirmation of the appellant is in accordance with Rules 45 and46 of the RJS Rules is answered in the Negative. There was nomaterial on record to showcase unsatisfactory performance ofthe appellant in terms of requirement under Rule 45 and 46 ofthe Rajasthan Judicial Services Rules, 2010. [Paras 50 & 51][726-C-D, G]F

6. The appellant was never granted an opportunity toimprove and there was no intimation to him about his performancebeing unsatisfactory. This requirement of affording an opportunityof improvement has been stressed upon by the Supreme Courton multiple occasions and has also been envisaged under RuleG46(1) of the RJS Rules, 2010. [Para 53][727-B-C]

7. Every judicial officer is likely to commit mistake of somekind or the other in passing orders in the initial stage of hisservice, which mature judicial officer would not do. However, if

the orders are passed without there being any corrupt motive,the same should be over-looked by the High Court and properguidance should be provided to him. In the present case,admittedly there was no intimation to appellant about hisperformance being unsatisfactory and hence he was deprived ofhis opportunity to improve as judicial officer. [Para 54][728-H;729-A-B]

8. The three complaints filed against the appellant werenever communicated to the petitioner during his service tenureand had been subsequently closed. The record clearly showcasesthat no verifiable complaint was filed against the appellant thatcould form the basis of the disciplinary proceeding against him.[Para 55][729-B-C]

9. With respect to the grant of bail order dated 27.04.2015,the record reveals that when the bail application of the accusedK.K. Jalia was listed before the Court of the appellant, no replywas filed by the State and the prosecution, despite being giventhe opportunity to file their reply, neither argued nor brought onrecord the fact about the bail of the accused being denied by theHigh Court. Additionally, it is evident from the record that theInvestigating Officer produced two letters dated 24.04.2015 and27.04.2015 by the competent authority that clearly stated thatthe file was submitted to the State Government for decisionregarding sanction. No time was specified regarding when thedecision was likely to be taken. Letter dated 27.04.2015 filed bythe Investigating Officer clearly stated that the meeting was heldwith competent authority on 23.03.2015 and that the file was sentto the State Government for their decision. Therefore, it is evidentthat the competent authority could not decide the matter and hadsent it to the State Government with no timeline in sight.Moreover, the counsel of the accused informed the appellant thatthe co-accused Alimuddin and Irfan had already been grantedbail by the High Court and this was relevant consideration toappellant’s mind. The fact of Alimuddin being granted bail waseven more relevant for the appellant because he was aware ofAlimuddin’s role in the case and also the fact that despiteprosecution sanction having been granted against Alimuddin, hewas granted bail by the High Court. [Para 56][730-A-E]

A10. The appellant could not be said to be at fault in grantingbail to K.K. Jalia since the bail order dated 27.04.2015 was basedon the non-grant of prosecution sanction and no progress inrelation to the same being brought on record. The appellant evenrecorded that the State should act swiftly in relation to the grantof prosecution sanctions in such matters. Also, it is settled lawBthat the appellant, under section 439 CrPC, could have grantedbail to the accused even subsequent to the rejection of the bailby the High Court. [Para 57][730-E-F]

11. In essence, the appellant honestly admitted in hiscomment that he had come across the reference of the dismissalCof the first bail application whilst dictating the bail order butexercised his discretion in granting bail to the accused given theuncertainty and delay in prosecution sanction and the interveninggrant of bail to the two other co-accused by the High Court, evenwhen the prosecution sanction had been granted for one of theDco-accused. [Para 59][731-F]

12. Importantly, the order of grant of bail dated 27.04.2015was never challenged by the State before the High Court.Moreover, no complaint was ever filed against the appellant withrespect to the grant of bail. [Para 61][733-A-B]

13. Charges filed against the appellant are vague in natureand absolutely no details have been provided regarding theallegation of passing the bail order for extraneous considerations/ulterior motive. In this context, there is no detail provided as towhat was the said extraneous consideration or ulterior motive,Fbut merely an inference has been drawn on the basis of suspicion.Further, the record reveals that no complaint or other materialexists which could form the basis of the said allegations. [Para62][733-B-C]

14. The accused K.K. Jalia had the right to file bailGapplication at any stage when undergoing imprisonment as anunder-trial prisoner. The fact that the two other co-accused hadalready been enlarged on bail was valid reason for granting bailto accused K.K. Jalia. If the High Court was to initiate disciplinary

proceedings based on judicial order, there should have beenstrong grounds to suspect appellant’s bona fides and the orderitself should have been actuated by malice, bias or illegality. Thisis clearly not the case in the present matter. The appellant wascompetent and well within his right to grant bail to the accused indischarge of his judicial functions. [Para 64][735-F-H]

15. Merely because wrong order has been passed by theappellant or the action taken by him could have been different,this does not warrant initiation of disciplinary proceedings againstthe judicial officer. [Para 66][736-G]

16. The appellant may have been guilty of negligence inthe sense that he did not carefully go through the case file anddid not take notice of the order of the High Court which was onhis file. This negligence cannot be treated to be misconduct.Moreover, the enquiry officer virtually sat as court of appealpicking holes in the order granting bail, even when he could notfind any extraneous reason for the grant of the bail order. Thepresent case revolves only around single bail order, and thattoo was passed with competent jurisdiction. Mere suspicion cannotconstitute “misconduct”. Any ‘probability’ of misconduct needsto be supported with oral or documentary material, and thisrequirement has not been fulfilled in the present case. Therewas no allegation of illegal gratification against the presentappellant. Relief-oriented judicial approaches cannot bythemselves be grounds to cast aspersions on the honesty andintegrity of an officer. [Para 69][740-G-H; 741-A-C]17. There was no material to showcase unsatisfactoryperformance of the appellant in terms of requirement under Rule45 and 46 of the RJS Rules, 2010. Moreover, the appellant’sdischarge was not simpliciter, as claimed by the respondent. Thenon-communication of the ACRs to the appellant has been provedto be arbitrary and since the respondent choose to hold an enquiryinto appellant’s alleged misconduct, the termination of his serviceis by way of punishment because it puts stigma on hiscompetence and thus affects his future career. In such case,

Athe appellant would be entitled to the protection of Article 311(2)of the Constitution. Moreover, the adverse comments in the ACRfor the year 2015 could not have been the basis on which theappellant was discharged from service. The appellant was nevergranted an opportunity to improve and there was no intimationto him about his performance being unsatisfactory. Importantly,Bno verifiable complaint was filed against the appellant that couldform the basis of the disciplinary proceeding against him. Afterperusing all the relevant record, it is clear that the appellant wascompetent to pass the bail order dated 27.04.2015 and theRespondent has not been able to prove the presence of anyCextraneous consideration or ulterior motive on the part of theappellant. Also neither the bail order dated 27.04.2015 was everchallenged by the State before any Court of law, nor was anycomplaint received against the appellant regarding the said bailorder. This is not the case where there are strong grounds tosuspect the appellant’s bona fides. Even if appellant’s act isDconsidered to be negligent, it cannot be treated as “misconduct”.[Para 71][741-F-H; 742-A-C]

18. The discharge order is quashed. Keeping in view thatthe appellant has not worked as judicial officer after he wasdischarged, it is directed that while the appellant be reinstatedEwith all consequential benefits including continuity of service andseniority, but will be entitled to be paid only 50% backwages.[Para 72][742-D-E]

Director, Aryabhatta Research Institute of ObservationalSciences vs Devendra Joshi(2018) 15 SCC 73;FRajasthan High Court vs. Ved Priya (Judgment dated18-03-2020 of Supreme Court in Civil Appeal No.8933-34/2017) andBimla Devi vs State of Bihar(1994)2 SCC 8 – distinguished.

Sukhdev Singh vs Union of India(2013) 9 SCC 566:G[2013] 5 SCR 1004; Maneka Gandhi vs Union of India(1978) 1 SCC 248: [1978] 2 SCR 621; Shamsher Singhvs State of Punjab(1974) 2 SCC 831: [1975] 1 SCR814; State of Bihar vs. Gopi Kishore PrasadAIR 1960

ABHAY JAIN v. THE HIGH COURT OF JUDICATURE FORRAJASTHAN AND ANR.

SC 689; Ishwar Chand Jain vs High Court of Punjaband Haryana (1988) 3 SCC 370: [1988] 1 Suppl. SCR396; Ramesh Chander Singh vs High Court ofAllahabad(2007) 4 SCC 247: [2007] 3 SCR 198; P.C.Joshi vs State of U.P. (2001) 6 SCC 491: [2001] 1 Suppl.SCR 369; Krishna Prasad Verma vs State of Bihar(2019) 10 SCC 640: [2019] 12 SCR 861 and SadhnaChaudhary vs State of U.P. (2020) 11 SCC 760 – reliedon.

Pradip Kumar vs Union of India(2012) 13 SCC 182:[2012] 9 SCR 1141; Radhey Shyam Gupta vs. U.P. StateAgro Industries Corporation Ltd.(1999) 2 SCC 21:[1998] 3 Suppl. SCR 558 and Pavanendra NarayanVerma vs. Sanjay Gandhi PGI of Medical Sciences(2002) 1 SCC 520: [2001] 5 Suppl. SCR 41 – referredto.

Case Law Reference

ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 2029of 2022.

From the Judgment and Order dated 21.10.2019 of the High Courtof Judicature for Rajasthan Bench at Jaipur in D.B. Writ Petition No.6749 of 2016.

P. S. Patwalia, Sr. Adv., Nikhil Singhvi, Ms. Supriya Juneja, AdityaSingla, Ms. Cheshtha Jetley, Obhirup Ghosh, Advs. for the Appellant.

Vijay Hansaria, Dr. Manish Singhvi, Sr. Advs., K. Parameshwar,M. V. Mukunda, Sandeep Kumar Jha, Advs. for the Respondents.

CThe Judgment of the Court was delivered by

VINEET SARAN, J.

Leave Granted

2. The appellant, who joined as judicial officer in 2013, havingbeen discharged from service in the year 2016, filed Writ Petition inDthe Rajasthan High Court, which was dismissed by the impugned judgmentdated 21.10.2019 passed by Division Bench of the High Court.Aggrieved by the same, this appeal has been filed by way of this SpecialLeave Petition.

3. Brief facts relevant for the purpose of the present case areEthat notification inviting applications for District Judge Examination,2013 was issued on 19.07.2011.The selection was to be madefromamongst the candidates of Advocates’ Quota under the Rajasthan JudicialServices Rules, 2010 (for short ‘RJS Rules’). In the said examination,the result of which was declared on 25.05.2013, the appellant stoodFfirst. On 15.07.2013, the appellant was appointed to the post of AdditionalDistrict Judge under Rule 43 of the RJS Rules read with Article 233(1)of the Constitution of India and as per the Rule 44 of RJS Rules, theappellant was to be on probation for period of 2 years. By an orderdated 16.07.2013, the appellant was posted as an Additional District &Sessions Judge No.2, Bharatpur, on which post he joined on 18.07.2013.GThen on 05.05.2014, the appellant was posted as Presiding Officer,Labour and Industrial Tribunal, Bharatpur, on which post he joined on06.05.2014. He was thereafter, by an order dated 24.02.2015, appointedas Sessions Judge, Anti-Corruption Department (ACD), Bharatpur, onwhich post he joined on 25.02.2015.

4. It was during his posting as Sessions Judge, Anti-CorruptionDepartment, Bharatpur, that bail was granted by the appellant, whichis the genesis of the action which has been taken against the appellant.

5. In case under Section 7, 13(1)(d) and 13(2) of the Preventionof Corruption Act, 1988, three accused namely K.K.Jalia, Alimuddinand Irfan were arrested on 29.12.2014. The said K. K. Jalia, who wasthe Chairman of the Municipal Corporation, was alleged to have taken abribe of Rs.5 Lakhs; Alimuddin, who was Police Constable, was allegedto have taken bribe of Rs.10 Lakhs; and Irfan, was non-official alsoalleged to be involved in the case. On 08.01.2015, the predecessor ofthe appellant dismissed the bail of K. K. Jalia and the bail of Alimuddinwas also dismissed on 03.02.2015.The Investigation Officer had sent aletter to the concerned department seeking sanction of prosecution againstthe said two accused, K. K. Jalia and Alimuddin on 18.02.2015. Chargesheet was filed against all the three accused on 23.02.2015. It was atthis stage, on 25.02.2015, that the appellant was appointed as SessionsJudge, Anti-Corruption Department.

6. Then on 04.03.2015, the second bail application of the accusedAlimuddin was rejected by the appellant. The bail application of K. K.Jalia was rejected by the Rajasthan High Court on 11.03.2015. On17.03.2015, the second bail application was filed by K. K. Jalia beforethe appellant. It is noteworthy that the Rajasthan High Court grantedbail to the co-accused Irfan (who was private person) on 16.04.2015,and then on 27.04.2015, bail was also granted to Alimuddin by theRajasthan High Court.

7. On the second bail application of K. K. Jalia filed on 17.03.2015,the Court fixed 20.03.2015 along with the main file. Then on 18.03.2015,on the main file the case was fixed for 31.03.2015 for filing of sanctionof prosecution of K. K. Jalia and till then the judicial custody of remandwas extended in the bail matter. On 20.03.2015, the bail matter wasadjourned for 31.03.2015. On 31.03.2015, the bail matter was adjournedfor 13.04.2015 and in the main file, 13.04.2015 was fixed for filing ofprosecution sanction against K. K. Jalia and for arguments on cognizance.On 13.04.2015, on which date the appellant was on leave, the bail matterwas again adjourned by the officiating Presiding Officer for 16.04.2015,and on the main file it was noted that no sanction against K. K. Jalia wasreceived and since the appellant was on leave, the case was fixed for27.04.2015 for filing of sanction of prosecution against K. K. Jalia. On

A16.04.2015, fresh application of bail was filed by the accused K. K.Jalia stating that he was arrested on 27.12.2014 and charge sheet wasfiled on 23.02.2015, but till date no sanction of prosecution as requiredunder Section 19 of the Prevention of Corruption Act, 1988, had beengiven, and that the custody of the accused K. K. Jalia was illegal as theaccused could not be detained for an indefinite period. On the said dateBthe appellant, in his order, observed that from 23.02.2015 till date i.e.16.04.2015, there was no document on the file which would indicate thatany progress has been made with regard to grant or refusal of sanction,and accordingly, it was directed that such progress report be filed withregard to the efforts of the Anti-Corruption Department for grant ofCsanction be submitted on 27.04.2015, and time was also granted to filereply to the bail application by the next date i.e. 27.04.2015. On17.04.2015, the matter was placed with regard to the attestation of bailof Irfan, who had been granted bail by the Rajasthan High Court on16.04.2015.

D8. On 27.04.2015, on the main file, the investigation officer soughttime for filing of sanction against K. K. Jalia and 08.05.2015 was fixedand till then, the judicial custody and remand of K. K. Jalia and Alimuddinwas extended. In the bail application of K. K. Jalia, which was alsofixed for 27.04.2015 and was taken separately, two letters had beenfiled. One letter dated 24.04.2015 mentioned that file for sanction ofEprosecution of K. K. Jalia was submitted to the State Government, andthe other letter dated 27.04.2015, which was addressed to the appellant,mentioned that meeting to discuss whether the prosecution sanctionshould be granted or not was held on 23.03.2015, but no decision hadbeen reached, and thus, the file had been sent back to the StateFGovernment to take decision in that regard and the same was stillpending. It was also pointed out that the other co-accused Alimuddin(Police Constable) had been granted bail by the Rajasthan High Courton the same date i.e. 27.04.2015. The appellant heard the matter of bailof K. K. Jalia and granted bail to him by detailed order. On 28.04.2015,the matter for attestation of bail of Alimuddin was taken on the main fileGas the Rajasthan High Court granted him bail on 27.04.2015. The sanctionof prosecution of K. K. Jalia was also received on the main file on28.04.2015.

9. It appears from the record that the bail order in the case of K.K. Jalia was called for by the Rajasthan High Court on 27.04.2015 itselfH

and on 02.05.2015 the appellant was directed by the Rajasthan HighCourt to submit his comments regarding the said order dated 27.04.2015.The appellant submitted his response/comments on 12.05.2015 statingtherein that the fact of dismissal of bail by the Rajasthan High Court on11.03.2015 was neither argued by the Counsel nor the copy of the orderwas filed or produced, even though time was granted to the prosecutionon 16.04.2015to file the reply to the bail application. In the said reply, itwas admitted by the appellant that the fact of dismissal of the bail by theRajasthan High Court came to his notice from the memo of the secondbail application while he was dictating the bail order dated 27.04.2015,and it was stated by the appellant in his reply that since the order of theRajasthan High Court dated 11.03.2015 was not produced before him,he had thought that there was definitely change in circumstances from11.03.2015 as the period of the custody of the accused was nearing fourmonths and also that 48 days had passed from 11.03.2015 to 27.04.2015and in the absence of prosecution sanction, especially when it could notbe known as to when such sanction would be granted, the trial could notstart. It was also stated by the appellant that other two co-accused,whose bail application had been rejected by him earlier, had alreadybeen granted bail by the Rajasthan High Court. After considering, theexplanation of the appellant, the Chief Justice of the Rajasthan HighCourt directed to initiate departmental enquiry under Rule 16 of RajasthanCivil Services (Classification, Control and Appeal) Rules, 1958 (for short‘CCA Rules, 1958).

10. The said inquiry was initiated against the appellant videMemorandum dated 07.08.2015 for acts amounting to misconduct andviolation of Rule 3 and 4 of the Rajasthan Civil Services (Conduct Rules),1971. The allegations levelled against the appellant included, inter alia,that he should have desisted from granting bail to the accused K.K. Jaliaas there had been no material or substantial change in the facts andcircumstances of the case after the rejection of his earlier bail applicationsby the appellant’s predecessors. Additionally, it was alleged that theappellant had already rejected the second bail application of the co-accused/Alimuddin on 04.03.2015 by observing therein that the matteris grave in nature and that there was no change in circumstances afterthe dismissal of his first bail application. It was also alleged that theappellant passed the bail order with some ulterior or oblique motives andfor extraneous considerations.

A11. The appellant submitted his preliminary objections to the aboveallegations on 29.09.2015, which came to be rejected by the EnquiryJudge vide order dated 31.10.2015, withoutaffording the opportunity ofpersonal hearing to the appellant.

12. The Higher Judicial Committee, which consisted of five JudgesBand which was constituted for deciding the confirmation and dischargeof Judicial Officers, on 24.11.2015, upon inspection of the appellant’srecords, decided not to recommend the appellant for confirmation.

13. On 20.01.2016, Full Court meeting was convenedwherein,based on the recommendation submitted by the Higher JudicialCCommittee, it was decided to discharge the appellant. Notably, theappellant was discharged despite the pendency of the enquiry proceedingsinitiated against him. On 27.01.2016, discharge order was passedagainst the appellant on the ground that the Full Court found the appellant’sservices to be unsatisfactory during the probation.

D14. Subsequently, the enquiry against the appellant was closed on02.05.2016. However, the department reserved the right to reopen thesame. On 05.05.2016, the High Court also closed the disciplinaryproceedings initiated against the appellant.

15. Aggrieved by the order dated27.01.2016, the appellant filed aEWrit Petition before the Rajasthan High Court on 18.05.2016 seekingthe following reliefs:

“(i)Quashing of impugned order dated 27.01.2016 whereinhe was discharged/removed from service

(ii)Quashing of the enquiry proceedings initiated againstFthe appellant by way of memorandum dated 07.08.2015

(iii)Quashing of conditional order dated 05.05.2016 passedby Respondent No. 1 seeking to re-open enquiry

(iv)Reinstatement along with consequential benefits”

G16. By an Order dated 21.10.2019, the Rajasthan High Courtdismissed the Writ Petition filed by the Appellant against the order dated27.01.2016. While Dismissing the Petition, the High Court observed that:

“During the pendency of the inquiry against the petitioner,Full Court Meeting was convened on 20.1.2016 and it wasHdecided to discharge the petitioner despite the pendency of

the inquiry against him on the basis of report of HigherJudiciary Committee and in this Committee one of the memberwas the Inquiry Judge. Petitioner had already completed twoyears of required probation period on 17.7.2015 and noextension order or confirmation order was passed.Hence, theorder of discharge, though appeared to be simpliciter but hadbeen passed on account of inquiry initiated against thepetitioner.

Thus, while granting bail to the accused, the petitioner tookinto consideration the fact that the accused was arrested onD28.12.2014 and the charge-sheet had been filed on 23.2.2015.However, prosecution sanction order of the accused had notbeen received and trial could not begin till the prosecutionsanction order was received. perusal of the bail order alsoreveals that it was argued by the counsel for the accused thatEthe co-accused Alimuddin had been granted bail by this Courton 27.04.2015.

The material question would be as to whether the petitionerwas aware of the fact that the bail petition filed by the accusedKamlesh Kumar Jalia had been dismissed by the High Court.

……..……..……..……..

Thus, the fact that the bail petition by the accused had beendismissed by the High Court was in the notice of the petitionerwhen he had passed the order dated 27.04.2015 grantingbail to the accused. It is noteworthy that challan had alreadybeen presented in the court when the bail petition filed by theaccused was dismissed by the High Court on 11.3.2015. Atthat stage also prosecution sanction order of the accused hadnot been received. Thus, there was no change in circumstancewarranting interference by the petitioner while granting bailto the accused on second bail application after about 40 daysof the dismissal of his bail petition by this court.”

The High Court further held that:

“It is not material as to whether the prosecution had soughtcancellation of bail granted to the accused or not. Thecomplainant or the State may not have bothered to seekcancellation of bail granted to the accused. Although, therewas no written complaint against the petitioner with regardto grant of bail to the accused but there must have been someoral complaint against the petitioner which resulted in seekinghis explanation by the High Court with regard to grant ofbail by him to the accused.

The High Court at the time of considering the case ofthepetitioner for conformation must have come to theconclusion that it was not interested to ascertain the truth ofallegations levelled against thepetitioner and opted to pass asimpliciter order of dispensing with the services ofthepetitioner. The Full Court had also taken into considerationthe remarks of the Inspecting Judge as well as theAdministrative Judge with regard to the period 2014-II. TheHigh Court in its wisdom came to the conclusion that theservices of thepetitioner, who was on probation, did notrequire to be confirmed as he was unlikely to prove to be

good judicial officer. The impugned order is simpliciter orderand cannot be termed as punitive. The issuance of charge-sheet against the petitioner was not the foundation of passingof the impugned order dated 27.1.2016. Rather, the impugnedorder had been passed by keeping in view the overall servicerecord of the petitioner.

In the present case, the service record of the petitioneravailable with the Committee as well as the High Court wasmerely motive to assess the service record of the petitionerwith view to decide whether he was to be confirmed inservice. It has been held by the Hon’ble Supreme Court inDirector Aryabhatta Research Institute of ObservationalScience’s case (supra) that even in case where regulardepartmental inquiry has been started and charge memo hasbeen issued and reply has been received and inquiry officerhas been appointed, and if at that time, inquiry is droppedand simple notice of termination is passed, the same wouldnot be punitive because the inquiry officer has not recordedevidence nor given any finding on the charges. In the presentcase also, though charges had been framed against thepetitioner and Inquiry Judge had been nominated but theInquiry Judge had not recorded any evidence nor had givenany finding on charges framed against the petitioner and thus,the inquiry Judge had not reached to logical conclusion.The High Court in its wisdom thought of dispensing with theservices of the petitioner by passing simpliciter order withoutproceeding with the inquiry. After carefully considering thefacts and circumstances of the case, we are of the opinionthat the judgements relied upon by the learned counsel forthe petitioner fail to advance the case of thepetitioner.”

17. Aggrieved by the abovementioned High Court Order dated21.10.2019, this appeal has been filed by the appellant by way of SpecialLeave Petition.

DEFG

A18. Mr.P.S. Patwalia, learned Senior Counsel for the Appellant,has submitted that the impugned discharge order of the High Court wasnot based upon “unsatisfactory performance” of the appellant, as is therequirement under Rule 45 and 46 of the RJS Rules, but rather thefoundation of the said order lies in the enquiry initiated against the appellantvide memorandum dated 07.08.2015. Therefore, it has been submitted,Bthat the order of discharge/termination is punitive in nature and is inviolation of Article 311(2) of the Constitution of India. To substantiatethe above submission, the learned Senior Counsel highlighted thecomments and observations from the Annual Confidential Reports (forshort “ACR”) of the appellant.

19. The learned Senior Counsel has also contended that therewas no valid complaint against the appellant and that in context of thethree complaints that have been relied upon by the respondent, it is crucialto note that firstly, these three complaints were never communicated tothe Appellant during his service tenure;secondly, that even after theDfirst two complaints dated 07.02.2014 and 21.04.2014, the appellant waspromoted to the next higher post as District Judge in Labour Court; andthirdly, that two of the three complaints relate to 2014 and were filedand closed prior to the meeting of the Higher Judicial Committee andtherefore, could not have been the basis of the decision of the HigherJudicial Committee.E

20. Mr. Patwalia, has further contented that there was no infirmityfound in the appellant’s record and the entire recommendation of theHigher Judicial Committee is based upon the passing of the bail orderdated 27.04.2015. The learned counsel has also highlighted the fact thatthat the Enquiry Judge of the Disciplinary proceedings against theFappellant was also part of the Higher Judicial Committee which had toprovide recommendation regarding discharge/confirmation of judicialofficers. Furthermore, it has been urged that the High Court in theimpugned order has failed to provide any reasoning for stating as to howthe allegation of misconduct pertaining to the bail order was not theGfoundation of the order of termination.

21. Reliance was placed on the Constitution Bench judgement ofthis court in State of Bihar vs. Gopi Kishore Prasad [AIR 1960 SC689] to argue that once an enquiry is initiated on charges of misconductand if services are terminated without following the provisions of ArticleH311(2) of the Constitution, then the said termination is illegal. Additionally,

it was argued that the reliance placed in the impugned order of the HighCourt on Director, Aryabhatta Research Institute of ObservationalSciences vs Devendra Joshi [(2018) 15 SCC 73] is misconceived.

22. The learned Senior Counsel relied upon this court’s judgementin Ishwar Chand Jain vs High Court of Punjab and Haryana [(1988)3 SCC 370] to argue that the appellant was not given an opportunity toimprove and that there was no intimation to him regarding hisperformance being unsatisfactory. It was contented that the saidrequirement has been further elaborated in Pradip Kumar vs Union ofIndia [(2012) 13 SCC 182], wherein this Court reinstated the officerinvolved therein with consequential benefits because the discharge ofthe officer was based on complaints and the officer was not given anopportunity to improve.

23. It was also submitted that the appellant was the topper of hisbatch in Rajasthan Judicial Services Examination and has had an overallgood record. Moreover, it was contented that the appellant furthercontinued on the post of Special Judge, ACB, Bharatpur, even pursuantto the passing of the bail order and that neither any complaint was madeagainst the said bail order, nor was it challenged before the High Court.

24. With respect to the facts pertaining to the bail order dated27.04.2015, the learned Senior Counsel has urged that if the appellanthad any illegal motive, he could have granted bail to the accused K.K.Jalia on 16.04.2015 itself when the prosecution sanction was not broughton record against the accused. However, the appellant listed the matterfor 27.04.2015 so as to give an opportunity to obtain the prosecutionsanction against the accused and reply could be filed by the State. Inspite of the opportunity granted for obtaining the sanction and filing thereply, the learned counsel contends that no reply was filed by the State.25. Furthermore, it has been urged by the Senior Counsel that thecontention of the respondent regarding self- contradictory orders beingpassed on 27.04.2015 in the main file and the bail matter is not tenable.It is contended that even if the said orders are considered to becontradictory, it only shows that the appellant had no malice or motivetowards extraneous consideration, since if the appellant had already pre-decided that he would grant bail to the accused K.K. Jalia due to anyextraneous consideration, then the appellant would never have passed acontradictory order in the first place.

26. The learned Senior Counsel for the appellant concluded hisarguments by stating that the charges filed against the appellant arevague in nature and that absolutely no details have been provided regardingthe said allegation of passing the bail order for extraneous considerations/ulterior motive.

27. Per contra, Mr. Vijay Hansaria, learned Senior Counselappearing for the Respondent has submitted that the issue which arisesfor consideration is “Whether the action of non-confirmation of theAppellant is in accordance with Rules 45 and 46 of the RajasthanJudicial Service Rules, 2010?”

C28. It has been contented by the learned Senior Counsel that aperusal of the recommendation of the Higher Judicial Committee of 5Judges, the decision of the Full Court and the Order of Discharge, woulddemonstrate that it was discharge simpliciter, as it was neither basedon any single act of impropriety nor an individual act formed thefoundation of the said discharge. Hence, it is contented, that the dischargeDorder in the present case is incapable of being interpreted as attachingany stigma to the appellant, especially in light of the fact that the appellantis not visited with any civil consequences.

29. The learned Senior Counsel for the Respondent has urgedthat, while it is true that disciplinary proceedings were initiated againstEthe appellant in relation to the bail order dated 27.04.2015, the samewere closed on 05.05.2016 by reserving the right to reopen the same.Meanwhile, only discharge simpliciter order was passed. It has beensubmitted that this Court has previously held that even where adepartmental enquiry was started, simple termination order could beFpassed by the employer as matter of right and it would not amount toa punitive termination. It was further contented that this Court has heldthat an employer is entitled to say that he would not continue an employeeagainst whom allegations are made, the truth of which the employer isnot interested to ascertain.

G30. Reliance was placed on this court’s judgement in RadheyShyam Gupta vs. U.P. State Agro Industries Corporation Ltd. [(1999)2 SCC 21], wherein it has been held that:

“Even in case where regular departmental inquiry isstarted, charge-memo issued, reply obtained, and an enquiryOfficer is appointed — if at that point of time, the inquiry is

dropped and simple notice of termination is passed, thesame will not be punitive because the enquiry Officer has notrecorded evidence nor given any findings on the charges.That is what is held in Sukh Raj Bahadur’s case [AIR 1968SC 1089] and in Benjamin’s case (1967 1 LLJ 718 (SC)]. Inthe latter case, the departmental inquiry was stopped becausethe employer was not sure of establishing the guilt of theemployee. In all these cases, the allegations against theemployee merely raised cloud on his conduct and as pointedby Krishna Iyer, J. in Gujarat Steel Tubes case [(1980) 2 SCC593], the employer was entitled to say that he would notcontinue an employee against whom allegations were madethe truth of which the employer was not interested to ascertain.In fact, the employer by opting to pass simple order oftermination as permitted by the terms of appointment or aspermitted by the rules was conferring benefit on theemployee by passing simple order of termination so that theemployee would not suffer from any stigma which would attachto the rest of his career if dismissal or other punitive orderwas passed. The above are all examples where the allegationswhose truth has not been found, and were merely the motive.”

(emphasis supplied)

31. The learned Senior Counsel further relied upon this court’sjudgement in Pavanendra Narayan Verma vs. Sanjay Gandhi PGIof Medical Sciences[(2002) 1 SCC 520]wherein it was held that:

“One of the judicially evolved tests to determine whether insubstance an order of termination is punitive is to see whetherprior to the termination there was (a) full scale formalenquiry (b) into allegations involving moral turpitude ormisconduct which (c) culminated in finding of guilt. If allthree factors are present the termination has been held to bepunitive irrespective of the form of the termination order.Conversely if any one of the three factors is missing, thetermination has been upheld.”

(emphasis supplied)

32. It was also contented by the learned Senior Counsel thatreliance placed by the appellant on the decision of this court in Pradip

AKumar (supra) is misplaced, since this court had, in that case, foundthat the discharge therein was violative of the rules framed under theapplicable statute. Moreover, it was urged that, in that case, there wasno material placed before the Court regarding the fact that the officerwas otherwise unsuitable to be continued.

B33. Mr. Hansaria has contended that, in light of the above judicialpronouncements, the approach in judicial review proceedings is notwhether the truth about the allegations has been conclusively established,but whether the employer had the right to say that probationer againstwhom allegations are made, ought to be discharged simpliciter. It wasfurther submitted that without going into the conclusive analysis relatingCto the grant of the bail order dated 27.04.2015, the four factors thatought to have been considered unpalatable for an employer, especiallyfrom judicial officer under probation are hereinbelow mentioned:

a.Two conflicting orders were passed on 27.04.2015, one inthe main matter and other in the bail application. While theDcustody of accused was extended and time was granted tothe State to produce prosecution sanction in the main matter,bail was granted to him on the same date on the groundthat the sanction order has not been produced.

b.The officer on probation considered it irrelevant orEimmaterial while granting the bail order to even peruse thetwo orders passed by the High Court. Firstly, the ordergranting bail to Mr. Alimuddin on the same day, but choseto incorporate it as reason for granting bail to Mr. K.K.Jalia. Secondly, the order of rejection of the bail by theFHigh Court on 11.03.2015, especially when such rejectionwas after the filing of the chargesheet. Moreover, the secondbail application was filed within 7 days of the rejection bythe High Court and there were no new interveningcircumstances.

Gc.The bail application was adjourned by the appellant at therequest of the Counsel of the accused on at least 4 occasionsi.e. 17.03.2015, 20.03.2015, 31.03.2015 and 13.04.2015.However, on 27.04.2015, the appellant did not wait for asingle day for sanction of prosecution by the StateGovernment. This is clearly contrary to the submission madeH

that the prosecution repeatedly took time to respond to thebail application.

d.There appears to be conflicting stand of the officer, in hisexplanation dated 12.05.2015 and his reply dated 07.11.2015,with respect to the knowledge of the High Court order dated11.03.2015 in which the court rejected the bail applicationof K.K. Jalia. The undisputed fact remains that the rejectionof the bail by the High Court was mentioned in the firstpage of the second bail application and was not noticed bythe appellant in the bail order passed by him on 27.04.2015.

34. Mr. Hansaria thus contended thatthe above four factors,especially the failure to peruse the orders passed by the High Court,could be considered as relevant factors while considering whether theappellant had failed to give satisfactory performance expected of anofficer under probation under Rule 46(1) of the RJS Rules, 2010.

35. Reliance has been placed upon this court’s judgement dated18.03.2020 in Rajasthan High Court vs. Ved Priya (Civil Appeal No.8933-34/2017) to urge that “merely because Respondent No. 1’s ACRswere consistently marked “Good”, it cannot be ground to bestowhim with right to continue in service.”.

36. It was further contented that the reliance placed by the appellantonthis Court’s order in the case of Sadhna Chaudhary vs State of U.P.[(2020)11 SCC 760] is misplaced because that was case of removalof judicial officer after conducting disciplinary inquiry and was not acase relating to probationer. Mr. Hansaria submitted that the action ofthe appellant ought not to be interpreted as bona fide mistake butshould be seriously considered as negligence.

37. The learned Senior Counsel contented that in addition to theabove submissions, it is also relevant to note that during the probationperiod of the Appellant, the High Court had received three Complaintswhich pertained to serious allegations of working, behaviour and integrityof the appellant, and even if these complaints were directed to be closedby the Chief Justice of the High Court, the same were still relevant.

38. Mr. Hansariaconcluded his submissions by stating that theappellant has not been able to establish any gross impropriety orprocedural irregularity of an extent that warrants interference by thisCourt.

39. For ready reference, the relevant provisions of the Constitutionof India and the concerned Rules are extracted below:

Article 311(2) of the Constitution of India

“311. Dismissal, removal or reduction in rank of personsemployed in civil capacities under the Union or State

(2) No such person as aforesaid shall be dismissed orremoved or reduced in rank except after an inquiry inwhich he has been informed of the charges againsthim and given reasonable opportunity of being heardin respect of those charges; Provided that where it isproposed after such inquiry, to impose upon him anysuch penalty, such penalty may be imposed on the basisof the evidence adduced during such inquiry and itshall not be necessary to give such person anyopportunity of making representation on the penaltyproposed:

Provided further that this clause shall not apply

(a) where person is dismissed or removed or reducedin rank on the ground of conduct which has led tohis conviction on criminal charge; or

(b) where the authority empowered to dismiss orremove person or to reduce him in rank is satisfiedthat for some reason, to be recorded by that authorityin writing, it is not reasonably practicable to holdsuch inquiry; or

(c) where the President or the Governor, as thecase may be, is satisfied that in the interest of thesecurity of the State, it is not expedient to holdsuch inquiry.”

Rule 45 of the Rajasthan Judicial Service Rules, 2010

“45. Confirmation.- (1) probationer appointed to theservice in the cadre of Civil Judge shall be confirmed inhis appointment by the Court at the end of his initial orextended period of probation, if the Court is satisfied thathe is fit for confirmation.

(2) person appointed to the service in the cadre of SeniorCivilJudge by promotion shall be substantively appointedby the Court in the cadre as and when permanentvacancies occur.

(3) probationer appointed to the service in the cadre ofDistrict Judge by direct recruitment shall be confirmed inhis appointment by the Court at the end of his initial orextended period of probation, if the Court is satisfied thathe is fit for confirmation.

(4) person appointed to the service in the cadre of DistrictJudge by promotion on the basis of merit-cum-seniority orby Limited Competitive Examination shall be confirmed inhis appointment by the Court on availability of permanentvacancies in the cadre.”

Rule 46 of the Rajasthan Judicial Service Rules, 2010

“46. Unsatisfactory progress during probation andextension of probation period.- (1) If it appears to the Court,at any time, during or at the end of the period of probationthat member of the service has not made sufficient use ofthe opportunities made available or that he has failed togive satisfactory performance, the Appointing Authoritymay, on recommendations of the Court, discharge him fromservice:

Provided that the Court may, in special cases, for reasonsto be recorded in writing, extend the period of probationof any member of the service for specified period notexceeding one year.

(2) An order sanctioning such extension of probation shallspecify the exact date up to which the extension is grantedand further specify as to whether the extended period willbe counted for the purpose of increment.

(3) If the period of probation is extended on account offailure to give satisfactory service, such extension shallnot count for increments, unless the authority granting theextension directs otherwise.

(4) If probationer is discharged from service during orat the end of the initial or extended period of probationunder sub-rule (1), he shall not be entitled to any claimwhatsoever.”

Rule 3 of the Rajasthan Civil Services (Conduct) Rules,1971

“3. General. – (1) Every Government servant shall at alltimes–

(i) maintain absolute integrity; and

(ii) maintain devotion to duty and dignity of office.

(2) (i)Every Government Servant holding supervisory postshall take all possible steps to ensure the integrity anddevotion to duty of all Government servants for the timebeing under his control and authority;

(ii) No Government servant shall, in the performance ofhis official duties or in the exercise of powers conferredon him, act otherwise than in his best judgment except whenhe is acting under such direction, obtain the direction inwriting, wherever practicable, and where it is notpracticable to obtain the direction in writing, he shall obtainwritten confirmation of the direction as soon thereafter aspossible.

Explanation– Nothing in clause (ii) of sub–rule (2) shallbe constituted as empowering Government servant toevade his responsibilities by seeking instructions from, orapproval of, superior officer or authority when suchinstructions are not necessary under the scheme ofdistribution of powers and responsibilities.”

Rule 4 of the Rajasthan Civil Services (Conduct) Rules,1971

“4. Improper and unbecoming conduct. – Any Governmentservant who –

(i) is convicted of an offence involving moral turpitudewhether in the course of the discharge of his duties or not;

(ii) behaves in public in disorderly manner unbecomingof his position as Government servant; or

(iii) is proved to have sent an anonymous or Pseudonymouspetition to any person in authority;

(iv) leads an immoral life;

(v) disobeys lawful order or instructions of superior officeror defies the superior officer;

(vi) without sufficient and reasonable cause, neglects orrefuses to maintain his/her spouse, parent, minor ordisabled child who isunable to maintain himself/herself or,does not look after any of them in responsible manner;

(vii) willfully tempers with the meter or any other equipmentor the power/water line with view to causing financialloss to any of the Departments/Companies providing publicutilities like power and water;

–shall be liable to disciplinary action.”

40. We have heard learned Senior Counsel for both the parties atlength and have carefully perused the record.

41. The submission of the respondent that the discharge of theappellant was discharge simpliciter and not violative of Article 311(2)of the Constitution of India is not worthy of acceptance. The High Courthas erred in holding that the discharge order of the appellant was asimpliciter order and not punitive in nature. In spite of observing that theorder of discharge had been passed on account of inquiry initiated againstthe appellant, the High Court failed to provide any reasoning as to howthe allegation of misconduct pertaining to the bail order was not thefoundation of the order of discharge.

42. At this juncture, it is relevant to turn to the Reports and ACRsof the appellant and the material placed before the Higher JudicialCommittee to scrutinize whether the discharge was based upon“unsatisfactory performance” of the appellant, or whether it was basedon the enquiry initiated against the appellant.

43. The material placed before the Higher Judicial Committee,which recommended the discharge of the appellant, clearly shows thatno adverse remarks were made against the appellant except in relation

Ato the grant of bail on 27.04.2015. The said material consisted of Bi-Annual Reports/Special Reports and the ACRs of the appellant. The Bi-annual/Special Reports for the period of July 2013-January 2014, January2014-July 2014 and July 2014-January 2015, which were placed beforethe committee makes it clear that the work and conduct of the appellantwas “good” and his integrity was never doubted. Furthermore, the ACRBof the appellant for the year 2013 contains the comment “very good”and mentions that the integrity of the appellant was never in doubt.Similarly, the ACR for the year 2014(Part-I) records the comment “verygood” for the appellant and also provides him with an integrity certificate.

44. The ACR for the year 2014(Part-II) contains the remarkC“good” for the appellant. During this period, the appellant was workingas the Presiding Officer, Labour cum Industrial Tribunal. In this context,it is pertinent to note that the comment by the Inspecting Judge regardingthe requirement to “improve judicial work” is based upon the enquiryinitiated against the appellant vide chargesheet issued on 07.08.2015,Dwhich related to his functioning as Special Judge, ACD cases Court,Bharatpur and not for the period of 2014. Additionally, the aforesaidcomment by the Inspecting Judge is contrary to the comments made byhim in the Special Report for the contemporaneous period which clearlyrecords his conduct, performance and work throughout the period to be

“good”. Lastly, no adverse remark is made even by the AdministrativeEJudge, who only added an advisory remark for the officer to concentrateon judicial work and improve the quality. Notably, no remark was madeagainst the integrity of the appellant.

45. The ACR for the year 2015 has been heavily relied upon bythe learned counsel of the Respondent to submit that the InspectingFJudge of the High Court remarked that the integrity of the appellant was“not free from doubt” and the integrity certificate of the appellant waswithheld by the Inspecting Judge and that the Administrative judge hadrecorded the remark in the 2015 ACR that “integrity of the officer isdoubtful. In my overall assessment, I rate the officer average”.G46. In our opinion, to argue that the comments and observations inthis 2015 ACR were the basis on which the appellant was discharged, ismisplaced and erroneous. Firstly, bare perusal of the ACR revealsthat the top of this ACR itself carried comment that read “Dischargedfrom Service”. Secondly, the Higher Judicial Committee had, even priorHto the submission of the 2015 ACR, already recommended the discharge

of the appellant. Notably, the ACR for the year 2015 was filled andsubmitted by the appellant on 20.01.2016, while the Higher JudicialCommittee had already recommended the discharge of the appellant on24.11.2015 itself and the impugned order of discharge was passed on27.01.2016, admittedly, in pursuance of Full Court meeting on20.01.2016. Additionally, although the learned counsel for the respondenthad submitted before us that the Integrity Certificate of the Appellantwas withheld by the Inspecting Judge, he failed to highlight that thereason for the certificate being withheld was that the appellant had beenserved with chargesheet and not because of the appellant’s servicerecord.

47. Moreover, it is not disputed that the ACRs were notcommunicated to him within reasonable time. In this context, 3-JudgeBench of this Court in Sukhdev Singh vs Union of India [(2013) 9SCC 566] has held that:

“In our opinion, the view taken in Dev Dutt [Dev Dutt vsUnion of India] that every entry in ACR of public servantmust be communicated to him/her within reasonable periodis legally sound and helps in achieving threefold objectives.First, the communication of every entry in the ACR to publicservant helps him/her to work harder and achieve more thathelps him in improving his work and give better results.Second and equally important, on being made aware of theentry in the ACR, the public servant may feel dissatisfied withthe same. Communication of the entry enables him/her to makerepresentation for upgradation of the remarks entered in theACR. Third, communication of every entry in the ACR bringstransparency in recording the remarks relating to publicservant and the system becomes more conforming to theprinciples of natural justice. We, accordingly, hold that everyentry in ACR-poor, fair, average, good or very good-must becommunicated to him/her within reasonable period.”

(emphasis supplied)

Hence, in light of the above, the non-communication of the ACRsto the appellant in the present case is arbitrary and as has been held bythis court in Maneka Gandhi vs Union of India [(1978) 1 SCC 248],such arbitrariness violated Article 14 of the Constitution of India.

48. Further, Constitution Bench of this Court in Gopi KishorePrasad (supra) has held that:

“The main question for determination in this appeal by specialleave is whether the provisions of Article 311(2) of theConstitution are applicable to probationer in the BiharSubordinate Civil Service, who has been discharged asunsuitable on grounds of notoriety for corruption andunsatisfactory work in the discharge of his public duties.

It would thus appear that, in the instant case, though therespondent was only probationer, he was discharged fromservice really because the Government had, on enquiry, cometo the conclusion, rightly or wrongly, that he was unsuitablefor the post he held on probation. This was clearly by way ofpunishment and, therefore, he was entitled to the protectionof Article 311(2) of the Constitution. It was argued on behalfof the appellant that the respondent, being mere probationer,could be discharged without any enquiry into his conductbeing made and his discharge could not mean any punishmentto him, because he had no right to post. It is true that, if theGovernment came to the conclusion that the respondent wasnot fit and proper person to hold post in the public serviceof the State, it could discharge him without holding anyenquiry into his alleged misconduct. If the Governmentproceeded against him in that direct way, without casting anyaspersions on his honesty or competence, his discharge wouldnot, in law, have the effect of removal from service by wayof punishment and he would, therefore, have no grievance toventilate in any court. Instead of taking that easy course, theGovernment chose the more difficult one of startingproceedings against him and of branding him as dishonestand an incompetent officer. He had the right, in thosecircumstances, to insist, upon the protection of Article 311(2)of the Constitution. That protection not having been given tohim, he had the right to seek his redress in court. It must,therefore, be held that the respondent had been wrongly

deprived of the protection afforded by Article 311(2) of theConstitution. His removal from the service, therefore, was notin accordance with the requirements of the Constitution.”

(emphasis supplied)

This Court also further observed that:

“In our opinion, the controversy raised in this case iscompletely covered by the decision of the Constitution Benchof this Court in Dhingra’s case, (1958)1 LLJ544SC. The mainquestion for decision in that case was whether the appellantDhingra had been reduced in rank by way of punishment asa result of the order of the General Manager of the Railway.Though, in that case, this Court decided that the orderimpugned had not that effect, this Court went elaborately intoall the implications of the service conditions, with particularreference to the Railway Service Rules and the constitutionalprovisions contained in Section 240 of the Government ofIndia Act, 1935 and Article 311 of the Constitution. Theelaborate discussion in that judgment has reference to allstages of employment in the public services includingtemporary posts, probationers, as also confirmed officers. Inso far as those observations have bearing on the terminationof service or discharge of probationary public servant, theymay be summarized as follows :

1 . Appointment to post on probation gives to the personso appointed no right to the post and his service may beterminated, without taking recourse to the proceedings laiddown in the relevant rules for dismissing public servant,or removing him from service.

2 . The termination of employment of person holding apost on probation without any enquiry whatsoever cannotbe said to deprive him of any right to post and is,therefore, no punishment.

3.But, if instead of terminating such person’s servicewithout any enquiry, the employer chooses to hold anenquiry into his alleged misconduct, or inefficiency, or forsome similar reason, the termination of service is by wayof punishment, because it puts stigma on his competence

and thus affects his future career. In such case, he isentitled to the protection of Article 311(2) of theConstitution.

4. In the last mentioned case, if the probationer isdischarged on any one of those grounds without properenquiry and without his getting reasonable opportunityof showing cause against his discharge, it will amount to aremoval from service within the meaning of Article 311(2)of the Constitution and will, therefore, be liable to be struckdown.

C5. But, if the employer simply terminates the services of aprobationer without holding an enquiry and without givinghim reasonable chance of showing cause against hisremoval from service, the probationary civil servant canhave no cause of action, even though the real motive behindthe removal from service may have been that his employerDthought him to be unsuitable for the post he was temporarilyholding, on account of his misconduct, or inefficiency, orsome such cause.”

(emphasis supplied)

49. 7-Judge Bench of this Court in Shamsher Singh vs StateEof Punjab [(1974) 2 SCC 831] has held that:

“The authority may in some cases be of the view that theconduct of the probationer may result in dismissal or removalon an inquiry. But in thosecases the authority may not holdan inquiry and may simply discharge the probationer with aview to giving him chance to make good in other walks oflife without stigma at the time of termination of probation.If,on the other hand, the probationer is faced with an enquiryon charges of misconduct or inefficiency or corruption, andif his services are terminated without following the provisionsof Article 311(2) he can claim protection.

……..……..……..H……..

The fact of holding an enquiry is not always conclusive. Whatis decisive is whether the order is really by way of punishment(see State of Orissa v. Ram Narayan Das [AIR 1961 SC 177 :(1961) 1 SCR 606 : (1961) 1 SCJ 209] ). If there is an enquirythe facts and circumstances of the case will be looked into inorder to find out whether the order is one of dismissal insubstance (see Madan Gopal v. State of Punjab [AIR 1963SC 531 : (1963) 3 SCR 716 : (1963) 2 SCJ 185] ). In R.C.Lacy v. State of Bihar [ Civil Appeal No. 590 of 1962, decidedon October 23, 1963] it was held that an order of reversionpassed following an enquiry into the conduct of theprobationer in the circumstances of that case was in the natureof preliminary inquiry to enable the Government to decidewhether disciplinary action should be taken. probationerwhose terms of service provided that it could be terminatedwithout any notice and without any cause being assignedcould not claim the protection of Article 311(2)

If the facts and circumstances of the case indicate that thesubstance of the order is that the termination is by way ofpunishment then probationer is entitled to attract Article311. The substance of the order and not the form would bedecisive(see K.H. Phadnis v. State of Maharashtra [(1971) 1SCC 790 : 1971 Supp SCR 118] ).

In the facts and circumstances of this case it is clear that theorder of termination of the appellant Shamsher Singh was,one of punishment. The authorities were to find out thesuitability of the appellant. They however concerned

themselves with matters which were really trifle. The appellantrightly corrected the records in the case of Prem Sagar. Theappellant did so with his own hand. The order of terminationis in infraction of Rule 9. The order of termination is thereforeset aside.”

(emphasis supplied)

50. The present case of the appellant is squarely covered by theabovementioned Constitution Bench judgements of this Court. Since theGovernment had, on enquiry, come to the conclusion, rightly or wrongly,that the appellant was unsuitable for the post he held on probation, thisCwas clearly by way of punishment and, hence, the appellant would beentitled to the protection of Article 311(2) of the Constitution. Moreover,in the facts and circumstances of the present case, the substance of thetermination order reveals that the discharge was by way of punishment.Hence, the question that whether the action of non-confirmation of theappellant is in accordance with Rules 45 and 46 of the RJS Rules isDanswered in the Negative.

51. We also find merit in the submission of the appellant that theadverse comments in the ACR for the year 2015 could not have beenthe basis on which the appellant was discharged from service.Additionally, it is pertinent to note that the learned counsel for theERespondent has himself submitted that the ACR for the year 2015 wasrecorded after the discharge order was passed and that the commentsof the Administrative Judge were made on 08.06.2016 and are basedupon the enquiry and the subsequent discharge of the appellant. Moreover,upon the perusal of the ACR for the year 2015, it is revealed that despiteFthe comments recorded, the overall performance of the Appellant wasrated as “good” by the Inspecting Judge himself. Part-II of the saidARC also contains the comment “good” on the appellant’s capacity ofhandling files systematically and the comment “Yes” on whether theappellant is fair and impartial in dealing with the public and the bar.Therefore, we are of the opinion that the submissions of the learnedGcounsel of the appellant holds merit that there was no material on recordto showcase unsatisfactory performance of the appellant in terms ofrequirement under Rule 45 and 46 of the RJS Rules, 2010.52. There appears to be no infirmity in the appellant’s record andthe entire recommendation of discharge by the Higher Judicial CommitteeH

is based upon the passing of the bail order dated 27.04.2015. Moreover,it is also pertinent to note that the Enquiry Judge of the DisciplinaryProceeding against the appellant was also part of the Higher JudicialCommittee which had to provide recommendations regarding discharge/confirmation of judicial officers.

53. Importantly, the appellant was never granted an opportunityto improve and there was no intimation to him about his performancebeing unsatisfactory. This requirement of affording an opportunity ofimprovement has been stressed upon by this Court on multiple occasionsand has also been envisaged under Rule 46(1) of the RJS Rules, 2010.Notably, this Court in Ishwar Chand Jain (supra)has held that:

“.....It is thus clear that so far as annual entry on theappellant’s confidential roll is concerned there was nomaterial against him which could show that the appellant’swork and conduct was unsatisfactory. The facts andcircumstances discussed earlier clearly show that theappellant’s services were terminated merely on the basis ofthe report made by the vigilance judge which we havediscussed in detail earlier. The note appended to the agendaof the meeting referred only to the inquiry report and it didnot refer to any other matter. The Vigilance Judge failed toexpress any positive opinion against the appellant instead heobserved that the complaints required further investigation.If the High Court wanted to take action against the appellanton the basis of the complaints which were the subject ofenquiry by the vigilance judge, it should have initiateddisciplinary proceedings against the appellant, then theappellant could get opportunity to prove his innocence. Wehave already discussed in detail that the facts stated in thecomplaints and the report submitted by the vigilance judgedid not show any defect in appellant’s work as judicialofficer. While considering complaints of irregularities againsta judicial officer on probation the High Court should havekept in mind that the incidents which were subject matter ofenquiryrelated to the very first year of appellant’s service.Every judicial officer is likely to commit mistake of some kindor the other in passing orders in the initial stage of his servicewhich mature judicial officer would not do. However, if the

orders are passed without there being any corrupt motive,the same should be over-looked by the High Court and properguidance should be provided to him. If after warning andguidance the officer on probation is not able to improve, hisservices should be terminated.

14. Under the Constitution the High Court has control overthe subordinate judiciary. While exercising that control it isunder constitutional obligation to guide and protect judicialofficers. An honest strict judicial officer is likely to haveadversaries in the mofussil courts. If complaints areentertained on trifling matters relating to judicial orders whichmay have been upheld by the High Court on the judicial sideno judicial officer would feel protected and it would bedifficult for him to discharge his duties in an honest andindependent manner.An independent and honest judiciary isa sine qua non for Rule of law. If judicial officers are underconstant threat of complaint and enquiry on trifling mattersand if High Court encourages anonymous complaints to holdthe field the subordinate judiciary will not be able toadminister justice in an independent and honest manner. It istherefore imperative that the High Court should also take stepsto protect its honest officers by ignoring ill-conceived ormotivated complaints made by the unscrupulous lawyers andlitigants.Having regard to facts and circumstances of theinstant case we have no doubt in our mind that the resolutionpassed by the Bar Association against the appellant waswholly unjustified and the complaints made by Sh. Mehalawatand others were motivated which did not deserve any credit.Even the vigilance judge after holding enquiry did not recordany finding that the appellant was guilty of any corrupt motiveor that he had not acted judicially.All that was said againsthim was that he had acted improperly in grantingadjournments.”

(emphasis supplied)

54. We are in agreement with the ratio laid down in the case ofIshwar Chand Jain (supra) that every judicial officer is likely to commitmistake of some kind or the other in passing orders in the initial stage ofHhis service, which mature judicial officer would not do. However, if

the orders are passed without there being any corrupt motive, the sameshould be over-looked by the High Court and proper guidance should beprovided to him. In the present case, admittedly there was no intimationto appellant about his performance being unsatisfactory and hence hewas deprived of his opportunity to improve as judicial officer.

55. In context of the three complaints filed against the appellant, itis important to note that the same were never communicated to thepetitioner during his service tenure and that the complaints had beensubsequently closed. Moreover, two out of the three complaints wereclosed prior to the meeting of the Higher Judicial Committee andtherefore, could not have been the basis of the decision of the Committee.Additionally, in so far as the complaint dated 20.10.2015 (bearing No. R/V/JP/PIN/118/2015) is concerned, it is neither supported by any affidavitnor has any address been provided in it and importantly, was also closedby the respondent prior to the appellant’s discharge order. In this context,it is pertinent to refer to the Standing Order No. 03./S.O./2015 dated10.06.2015 which directed that:

“The complaint making allegations against members of thesubordinate judiciary in the states should not be entertainedand no action should be taken thereon, unless it isaccompanied by duly sworn affidavit and verifiable materialto substantiate the allegations made therein

The entry of the complaint in the pre-institution register forinward number will not be treated as pendency of Vigilancematter against the Judicial Officer and will not be taken intoconsideration against the Judicial Officer in any servicematter including transfer, promotion and for compulsoryretirement.”

(emphasis supplied)

In the present case, the record clearly showcases that no verifiablecomplaint was filed against the appellant that could form the basis of thedisciplinary proceeding against him.

A56. With respect to the grant of bail order dated 27.04.2015, therecord reveals that when the bail application of the accused K.K. Jaliawas listed before the Court of the appellant, no reply was filed by theState and the prosecution,despite being given the opportunity to file theirreply, neither argued nor brought on record the fact about the bail of theaccused being denied by the High Court. Additionally, it is evident fromBthe record that the Investigating Officer produced two letters dated24.04.2015 and 27.04.2015 by the competent authority that clearly statedthat the file was submitted to the State Government for decision regardingsanction. No time was specified regarding when the decision was likelyto be taken. Letter dated 27.04.2015 filed by the Investigating OfficerCclearly stated that the meeting was held with competent authority on23.03.2015 and that the file was sent to the State Government for theirdecision. Therefore, it is evident that the competent authority could notdecide the matter and had sent it to the State Government with no timelinein sight. Moreover, the counsel of the accused informed the appellantthat the co-accused Alimuddin and Irfan had already been granted bailDby the High Court and this was relevant consideration to appellant’smind. The fact of Alimuddin being granted bail was even more relevantfor the appellant because he was aware of Alimuddin’s role in the caseand also the fact that despite prosecution sanction having been grantedagainst Alimuddin, he was granted bail by the High Court.

57. In light of the above, the appellant could not be said to be atfault in granting bail to K.K. Jalia since the bail order dated 27.04.2015was based on the non-grant of prosecution sanction and no progress inrelation to the same being brought on record. The appellant even recordedthat the State should act swiftly in relation to the grant of prosecutionFsanctions in such matters. Also, it is settled law that the appellant, undersection 439 Cr.P.C., could have granted bail to the accused evensubsequent to the rejection of the bail by the High Court.

58. Additionally, we do not find merit in the submission of thelearned counsel of the respondent that the appellant did not consider itGrelevant to look into the order of rejection of the bail by the High Courton 11.03.2015. From the record it is clear that despite being granted anopportunity to file their reply, the prosecution itself failed to either arguebefore the appellant or bring the High Court order on record. Moreover,even the contention of the Senior Counsel for the respondent that theappellant had given contradictory orders does not hold water since theH

main matter was taken prior in the day when the standard order extendingremand was passed in light of there being no sanction since cognizancecould not be taken. The said order was necessary, since at that time, thebail application had not been heard and the possibility was that the bailmay or may not have been heard on that day, or may even have beendenied. Even otherwise, if the said orders are considered to becontradictory, it only shows, as has been rightly argued by the learnedcounsel of the appellant, that the appellant was not motivated byextraneous considerations and had not already decided that he was goingto grant bail to the accused, since in that eventuality, he would neverhave passed such contradictory orders in the first place.59. We do not find merit in the contention of the learned counselof the respondent that there appears to be conflicting stand of theappellant, with respect to the knowledge of the High Court Order dated11.03.2015in his explanation dated 12.05.2015 and his reply dated07.11.2015. Notably, the appellant in his explanation dated 12.05.2015stated that the appellant came to know of the order dated 11.03.2015only while dictating the bail order dated 27.04.2015 and whereas in theappellant’s reply dated 07.11.2015, the reference is with respect to “dateof filing” of the bail application before the High Court not being given inthe memo of second bail application filed before the appellant. The replydated 07.11.2015 further specifically stated that the “contents of order”dated 11.03.2015 were not in the appellant’s knowledge. Therefore, thereappears to be no contradiction with respect to the knowledge of theHigh Court order dated 11.03.2015in the appellant’s explanation dated12.05.2015 and his reply dated 07.11.2015. In essence, the appellanthonestly admitted in his comment that he had come across the referenceof the dismissal of the first bail application whilst dictating the bail orderbut exercised his discretion in granting bail to the accused given theuncertainty and delay in prosecution sanction and the intervening grantof bail to the two other co-accused by the High Court, even when theprosecution sanction had been granted for one of the co-accused.

60. The learned counsel for the Respondent relied upon thejudgement of this Court in the case of Rajasthan High Court vs. VedPriya (supra)to content that merely because an officer’s ACRs wereconsistently marked “Good”, it cannot be ground to bestow him with aright to continue in service. However, we hold that this reliance placedby the respondent is misplaced and erroneous. Firstly, what was

Aconsidered in the said case were multiple acts of granting bail in mattersunder the NDPS Act without having jurisdiction to do the same. It wasnot the act of grant of bail in single matter like in the present case.Additionally, unlike in the present case, the officer in that case had passedan order without proper jurisdiction. Secondly, unlike in the present case,no enquiry was initiated or pending against the officer in that case. InBfact, this Court in aforesaid itself has held that:

“True it is that the form of an order is not crucial to determinewhether it is simplicitor or punitive in nature. An order oftermination of service though innocuously worded may, inthe facts and circumstances of peculiar case, also be aimedCat punishing the official on probation and in that case itwould undoubtedly be an infraction of Article 311 of theConstitution. The Court in the process of judicial review ofsuch order can always lift the veil to find out as to whetheror not the order was meant to visit the probationer with penalDconsequences.

If the genesis of the order of termination of service lies in aspecific act of misconduct, regardless of over all satisfactoryperformance of duties during the probation period, the Courtwill be well within its reach to unmask the hidden cause andFhold that the simplicitor order of termination, in fact, intendsto punish the probationer without establishing the charge (s)by way of an enquiry. However, when the employer does notpick-up specific instance and forms his opinion on the basisof overall performance during the period of probation, theGtheory of action being punitive in nature, will not beattracted.”

(emphasis supplied)

Hence the reliance placed by the learned counsel of the respondentHon Rajasthan High Court vs. Ved Priya (supra) is misplaced.

61. Importantly, the order of grant of bail dated 27.04.2015 wasnever challenged by the State before the High Court. Moreover, nocomplaint was ever filed against the appellant with respect to the grantof bail. Hence, reliance placed by the learned counsel of the Respondenton Bimla Devi vs State of Bihar [(1994) 2 SCC 8] is also misplacedand erroneous.

62. We also find merit in the submission of the learned counsel ofthe appellant that the charges filed against the appellant are vague innature and that absolutely no details have been provided regarding thesaid allegation of passing the bail order for extraneous considerations/ulterior motive. In this context, there is no detail provided as to what wasthe said extraneous consideration or ulterior motive, but merely aninference has been drawn on the basis of suspicion. Further, the recordreveals that no complaint or other material exists which could form thebasis of the said allegations.

63. 3-Judge bench of this court in Ramesh Chander Singh vsHigh Court of Allahabad [(2007) 4 SCC 247]has specifically heldthat:

“This Court on several occasions has disapproved thepractice of initiation of disciplinary proceedings againstofficers of the subordinate judiciary merely because thejudgments/orders passed by them are wrong. The appellateand revisional courts have been established and given powersto set aside such orders. The higher courts after hearing theappeal may modify or set aside erroneous judgments of thelower courts. While taking disciplinary action based onjudicial orders, the High Court must take extra care andcaution.

However, the learned Judge inquiring the matter eventuallycame to the conclusion that the bail had been granted by theappellant in utter disregard of judicial norms and oninsufficient grounds and based on extraneous consideration

with oblique motive and the charges had been proved. It isimportant to note that the Judge who conducted the enquiryhas not stated in his report as to what was the oblique motiveor the extraneous consideration involved in the matter.

The counsel for the respondent pointed out that on threeCprevious occasions the bail had been declined to the verysame accused and as there was no change in thecircumstances, the appellant-officer should not haveconsidered the fourth bail application as well. Of course, inthe previous bail applications, many of the contentions raisedDby the accused were considered, but an accused has the rightto file bail application at any stage when undergoingimprisonment as an under-trial prisoner. The fact that the twoother accused had already been enlarged on bail was validreason for granting bail to accused Ram Pal.Moreover,accused Ram Pal had been in jail for one year as an under-Etrial prisoner and the charge-sheet had already been filed.In our opinion, if accused Ram Pal were to be denied bail inthese circumstances, it would have been travesty of justiceespecially when all factors relevant to be gone into forconsidering the bail application were heavily loaded in favourof grant of bail to accused Ram Pal.

We fail to understand as to how the High Court arrived at adecision to initiate disciplinary proceedings solely based onthe complaint, the contents of which were not believed to betrue by the High Court. If the High Court were to initiatedisciplinary proceedings based on judicial order, there

should have been strong grounds to suspect officer’s bonafides and the order itself should have been actuated by malice,bias or illegality. The appellant-officer was well within hisright to grant bail to the accused in discharge of his judicialfunctions. Unlike provisions for granting bail in TADA Act orNDPS Act, there was no statutory bar in granting bail to theaccused in this case.A Sessions Judge was competent to grantbail and if any disciplinary proceedings are initiated againstthe officer for passing such an order, it would adversely affectthe morale of subordinate judiciary and no officer would beable to exercise this power freely and independently.

The fact that it was case of daylight murder wherein twopersons died, is not adequate to hold that the accused werenot entitled to bail at all. Passing order on bail applicationis matter of discretion which is exercised by judicial officerwith utmost responsibility. When co-accused had beengranted bail by the High Court, the appellant cannot be saidto have passed an unjustified order granting bail, that too, toan accused who was student and had been in jail for morethan one year.If at all, the inspecting Judge had foundanything wrong with the order,he should have sent for theofficer and advised him to be careful in future.”

64. Hence, in light of the above judicial pronouncement, we holdthat the accused K.K. Jalia had the right to file bail application at anystage when undergoing imprisonment as an under-trial prisoner. Thefact that the two other co-accused had already been enlarged on bailwas valid reason for granting bail to accused K.K. Jalia.If the HighCourt was to initiate disciplinary proceedings based on judicial order,there should have been strong grounds to suspect appellant’s bona fidesand the order itself should have been actuated by malice, bias or illegality.This is clearly not the case in the present matter. The appellant was

Acompetent and well within his right to grant bail to the accused in dischargeof his judicial functions.

65. This court in P.C. Joshi vs State of U.P. [(2001) 6 SCC 491]held that:

“That there was possibility on given set of facts to arrive atBa different conclusion is no ground to indict judicial officerfor taking one view and that too for alleged misconduct forthat reason alone. The enquiry officer has not found any othermaterial, which would reflect on his reputation or integrity orgood faith or devotion to duty or that he has been actuatedCby any corrupt motive. At best, he may say that the view takenby the appellant is not proper or correct and not attributeany motive to him which is for extraneous consideration thathe had acted in that manner. If in every case where an orderof subordinate court is found to be faulty disciplinaryaction were to be initiated, the confidence of the subordinateDjudiciary will be shaken and the officers will be in constantfear of writing judgment so as not to face disciplinaryenquiry and thus judicial officers cannot act independentlyor fearlessly. Indeed the words of caution are given in K.K.Dhawan case [(1993) 2 SCC 56 : 1993 SCC (L&S) 325 :E(1993) 24 ATC 1] and A.N. Saxena case [(1992) 3 SCC 124 :1992 SCC (L&S) 861 : (1992) 21 ATC 670] that merelybecause the order is wrong or the action taken could havebeen different does not warrant initiation of disciplinaryproceedings against the judicial officer. In spite of suchcaution, it is unfortunate that the High Court has chosen toFinitiate disciplinary proceedings against the appellant in thiscase.”66. We concur with the view of this Court in the aforesaid casethat merely because wrong order has been passed by the appellant orthe action taken by him could have been different, this does not warrantGinitiation of disciplinary proceedings against the judicial officer.

67. This court in Krishna Prasad Verma vs State of Bihar[(2019) 10 SCC 640], while setting aside the High Court’s order,quashed the charges against the officer therein and granted himconsequential benefits while holding that:H

“No doubt, there has to be zero tolerance for corruption andif there are allegations of corruption, misconduct or of actsunbecoming of judicial officer, these must be dealt withstrictly. However, if wrong orders are passed, that should notlead to disciplinary actions unless there is evidence that thewrong orders have been passed for extraneous reasons andnot because of the reasons on the file.

The main ground to hold the appellant guilty of the first chargeis that the appellant did not take notice of the orders of theHigh Court whereby the High Court had rejected the bailapplication of one of the accused vide order dated 26-11-2001 [Shivnath Rai v. State of Bihar, Criminal Misc. No. 30563of 2001, order dated 26-11-2001 (Pat)] . It would be pertinentto mention that the High Court itself observed that afterframing of charges, if the non-official witnesses are notexamined, the prayer for bail could be removed, but aftermoving the lower court first. The officer may have been guiltyof negligence in the sense that he did not carefully go throughthe case file and did not take notice of the order of the HighCourt which was on his file. This negligence cannot be treatedto be misconduct. It would be pertinent to mention that theenquiry officer has not found that there was any extraneousreason for granting bail. The enquiry officer virtually sat asa court of appeal picking holes in the order granting bail.

We would, however, like to make it clear that we are in nomanner indicating that if judicial officer passes wrongorder, then no action is to be taken. In case judicial officer

Apasses orders which are against settled legal norms but thereis no allegation of any extraneous influences leading to thepassing of such orders then the appropriate action which theHigh Court should take is to record such material on theadministrative side and place it on the service record of thejudicial officer concerned. These matters can be taken intoBconsideration while considering career progression of thejudicial officer concerned. Once note of the wrong order istaken and they form part of the service record these can betaken into consideration to deny selection grade, promotion,etc., and in case there is continuous flow of wrong or illegalCorders then the proper action would be to compulsorily retirethe judicial officer, in accordance with the Rules. We againreiterate that unless there are clear-cut allegations ofmisconduct, extraneous influences, gratification of any kind,etc., disciplinary proceedings should not be initiated merelyon the basis that wrong order has been passed by theDjudicial officer or merely on the ground that the judicial orderis incorrect.”

(emphasis supplied)

68. Furthermore, this Court has recently held in SadhnaEChaudhary (supra) that:

“20. We are also not oblivious to the fact that mere suspicioncannot constitute ‘misconduct’. Any ‘probability’ofmisconduct needs to be supported with oral or documentarymaterial, even though the standard of proof would obviouslyFnot be at par with that in criminal trial. While applyingthese yardsticks, the High Court is expected to consider theexistence of differing standards and approaches amongstdifferent judges. There are innumerable instances of judicialofficers who are liberal in granting bail, awardingcompensation under MACT or for acquired land, backwagesGto workmen or mandatory compensation in other cases oftortious liabilities. Such relief-oriented judicial approachescannot by themselves be grounds to cast aspersions on thehonesty and integrity of an officer.

21. Furthermore, one cannot overlook the reality of ours beinga country wherein countless complainants are readily

available without hesitation to tarnish the image of thejudiciary, often for more pennies or even cheap momentarypopularity. Sometimes few disgruntled members of the Baralso join hands with them, and officers of the subordinatejudiciary are usually the easiest target. It is, therefore, theduty of High Courts to extend their protective umbrella andensure that upright and straightforward judicial officers arenot subjected to unmerited onslaught.

24. However, the facts of the present case are distinct. Thiscourt, in fact, entered into the merits of one of the allegedlyerroneous orders. Not only was the judgement affirmed, butrather the compensation was further enhanced. It hence canno longer be stated that the appellant’s order was wrong inconclusion. This fact is significant as it establishes that theincrease in compensation by the appellant was not abhorrent.

25. Had the charge been specific that the decision-makingprocess was effectuated by extraneous considerations, thenthe correctness of the appellant’s conclusions probably wouldnot have mattered as much. However, perusal of the chargesextracted above makes it evident that the exclusive cause ofinquiry, inference of dishonesty as well as imposition of penaltywas only on the basis of the conclusion of enhancement ofcompensation. Given how the challenge to one of those twoorders had been turned down at the High Court stage, andthe other was both affirmed and furthered in principle by thiscourt, the very foundation of the charges no longer survives.

26. We can find no fault in the proposition that the end resultof adjudication does not matter, and only whether thedelinquent officer had taken illegal gratification (monetaryor otherwise) or had been swayed by extraneousconsiderations while conducting the process is of relevance.Indeed, many-a-times it is possible that judicial officer can

indulge in conduct unbecoming of his office whilst at the sametime giving an order, the result of which is legally sound. Suchunbecoming conduct can either be in the form of judgetaking case out of turn, delaying hearings throughadjournments, seeking bribes to give parties their legal duesetc. None of these necessarily need to affect the outcome.However, importantly in the present case, necessarily needto affect the outcome. However, importantly in the presentcase,a perusal of the chargesheet shows that no suchallegation of the process having been vitiated has been madeagainst the appellant.27. There is no explicit mention of any extraneousconsideration being actually received or of unbecomingconduct on the part of the appellant. Instead, the very basisof the finding of ‘misbehaviour’ is the end result itself, whichas per the High Court was so shocking that it gave rise to anatural suspicion as to the integrity and honesty of theappellant. Although this might be right in vacuum, however,given how the end result itself has been untouched by superiorcourts and instead in one of the two cases, the compensationonly increased, no such inference can be made. Thus, theentire case against the appellant collapses like house ofcards.”

Conclusion

28.In light of the above discussion, the appeal is allowed.The judgment of the High Court is set aside and the writpetition filed by the appellant is allowed. The order of dismissaldated 17-1-2006 passed by Respondent 1 is set aside, theappellant’s prayers for reinstatement with consequentialbenefits including retiral benefits, is accepted. No order as tocosts.

(emphasis supplied)

69. In light of the above judicial pronouncements, we hold that theappellant may have been guilty of negligence in the sense that he did notcarefully go through the case file and did not take notice of the order ofthe High Court which was on his file. This negligence cannot be treatedto be misconduct. Moreover, the enquiry officer virtually sat as court

of appeal picking holes in the order granting bail, even when he could notfind any extraneous reason for the grant of the bail order. Notably, in thepresent case, there was not string of continuous illegal orders thathave been alleged to be passed for extraneous considerations. The presentcase revolves only around single bail order, and that too was passedwith competent jurisdiction. As has been rightly held by this Court inSadhna Chaudhary (supra), mere suspicion cannot constitute“misconduct”. Any ‘probability’ of misconduct needs to be supportedwith oral or documentary material, and this requirement has not beenfulfilled in the present case. These observations assume importance inlight of the specific fact that there was no allegation of illegal gratificationagainst the present appellant. As has been rightly held by this Court,such relief-oriented judicial approaches cannot by themselves be groundsto cast aspersions on the honesty and integrity of an officer.

70. Additionally, the High Court in the impugned order haserroneously stated that there must have been some oral complaint whichresulted in the explanation being sought by the Respondent. This, it isheld, was based on conjectures and is in stark contravention to theproposition laid down in the above referred judgements, especially giventhe fact that the High Court had itself recorded that there was no writtencomplaint against the appellant. Lastly, reliance placed by the High Courtin the impugned order on Director Aryabhatta research Institute ofObservational Sciences (supra) is misconceived as the facts of thesaid case are distinguishable on facts since in the said case, the enquirywas only preliminary enquiry prior to the initiation of formal inquiryand furthermore, there were many letters of the management regardingunsatisfactory performance, of which the delinquent officer was intimatedin advance.

71. To conclude, we are of the firm view that in the present casethere was no material to showcase unsatisfactory performance of theappellant in terms of requirement under Rule 45 and 46 of the RJS Rules,2010. Moreover, the appellant’s discharge was not simpliciter, as claimedby the respondent. The non-communication of the ACRs to the appellanthas been proved to be arbitrary and since the respondent choose to holdan enquiry into appellant’s alleged misconduct, the termination of hisservice is by way of punishmentbecause it puts stigma on hiscompetence and thus affects his future career. In such case, theappellant would be entitled to the protection of Article 311(2) of the

AConstitution. Moreover, the adverse comments in the ACR for the year2015 could not have been the basis on which the appellant was dischargedfrom service. The appellant was never granted an opportunity to improveand there was no intimation to him about his performance beingunsatisfactory. Importantly, no verifiable complaint was filed against theappellant that could form the basis of the disciplinary proceeding againstBhim. After perusing all the relevant record, we hold that the appellantwas competent to pass the bail order dated 27.04.2015 and that theRespondent has not been able to prove the presence of any extraneousconsideration or ulterior motive on the part of the appellant. It shouldalso be highlighted here that neither the bail order dated 27.04.2015 wasCever challenged by the State before any Court of law, nor was anycomplaint received against the appellant regarding the said bail order.This is not the case where there are strong grounds to suspect theappellant’s bona fides. Even if appellant’s act is considered to be negligent,it cannot be treated as “misconduct”.

D72. Accordingly, the Appeal is Allowed and the impugned order ofthe High Court dated 21.10.2019 is set aside and the discharge orderdated 27.01.2016 is quashed. Keeping in view that the appellant has notworked as judicial officer after he was discharged, we direct that whilethe appellant be reinstated with all consequential benefits includingcontinuity of service and seniority, but will be entitled to be paid onlyE50% backwages, which may be paid within period of four monthsfrom today.

Bibhuti Bhushan Bose(Assisted by : Shubhanshu Das, LCRA)

Appeal allowed.