Tripura High Court
Sri Koushik Karmakar vs State Of Tripura on 24 January, 2024
Author: T. Amarnath Goud
Bench: T. Amarnath Goud
Page 1 of 24
HIGH COURT OF TRIPURA
AGARTALA
WP(C) NO.255 OF 2023
Sri Koushik Karmakar,
Son of Krishnapada Karmakar,
Resident of Indranagar, ITI Road,
P.O.- Indranagar, Agartala, Tripura(W)-799006.
......Petitioner(s)
Versus
1. State of Tripura,
Represented by the Secretary,
Law Department, Government of Tripura,
New Secretariat Complex, P.O- Secretariat,
Agartala, West Tripura.
2. Hon'ble High Court of Tripura,
Represented by Registrar General,
Agartala, Tripura West.
3. DLR & Deputy Secretary Law,
Government of Tripura, New Secretariat Complex,
P.O- Secretariat, Agartala West Tripura.
4. The District & Sessions Judge,
Khowai, Tripura, PIN-799202.
.......Respondent(s)
For the Petitioner(s) : Petitioner-in-Person.
Mr. C.S. Sinha, Advocate.
Mr. D.C. Saha, Advocate.
For the Respondent(s) : Mr. S.S. Dey, Advocate General.
Mr. B.N. Majumder, Sr. Advocate.
Mr. B. Paul, Advocate.
Ms. A. Chakraborty, Advocate.
Date of hearing : 16.01.2024.
Date of delivery of
Judgment & Order : 24/01/2024
Whether fit for reporting : YES.
HON'BLE MR. JUSTICE T. AMARNATH GOUD
HON'BLE MR. JUSTICE BISWAJIT PALIT
JUDGMENT & ORDER
T. AMARNATH GOUD(J)
Heard petitioner-in-person as well as Mr. C.S.
Sinha, learned counsel appearing for the petitioner. Also heard Mr.
S.S. Dey, learned Advocate General assisted by Ms. A. Chakraborty,
learned counsel appearing for the State-respondent as well as Mr.
B.N. Majumder, learned Sr. counsel assisted by Mr. B. Paul, learned
counsel appearing for the respondent-Hon'ble High Court of Tripura.
2. The brief fact of the case is that vide the order of
appointment dated 25th November 2020, the petitioner was selected
as a Grade-III Judicial Officer. On 1st December 2020, he joined
Tripura Judicial Service. After completion of 6(six) months training
period, he was posted as Civil Judge, Junior Division cum J.M. 1 st
Class Khowai Tripura. On 29th of March 2022, the petitioner
received a show cause notice which was sent to the petitioner vide
No.F.69(53)-HC/VIG/2022/8459 dated 23rd March, 2022 by the
Registrar Vigilance, High Court of Tripura. The petitioner gave his
reply dated 4th April 2022 to the said show cause notice. On 18th
July 2022, the petitioner received a notice vide No.F.9(a)(191)-
HC(VIG0/2022/16657, dated 12.07.2022 issued by the Registrar
Vigilance, High Court of Tripura alleging that the Registry of the
High Court of Tripura received a letter from the Hon'ble Minister of
Social Justice and Empowerment, Government of India, New Delhi
with a recommendation for transfer of the petitioner from Khowai
District Court to West Tripura District/Sepahijala District or any
other District adjacent to the house of the petitioner. The petitioner
was accused of approaching the Hon'ble Minister of State for Social
Justice and Empowerment, Government of India to recommend his
transfer. The petitioner was charged with exercising extraneous
influence upon the High Court. Thereafter, the District and Sessions
Judge, Khowai vide No.F.2(18)-DJ/KH/Acctt/2022/8386-91 dated
21st November 2022 reduced the 50% of his approved house rent
for reimbursement. The petitioner challenging the validity of the
order dated 21st November 2022 passed by the learned District and
Sessions Judge, Khowai, and preferred a prayer before the learned
District and Sessions Judge, Khowai on 25th February 2023 for
cancellation of the same. On 29.11.2022, the Hon'ble Full Court
took a decision recommending that the petitioner's "demeanour is
unbecoming of a judicial officer and his integrity is also douthful".
Relying on the recommendation dated 29.11.2022 of the Hon'ble
Full Court, the Law Department, Government of Tripura issued a
Notification dated 27th December 2022 discharging the petitioner
from service.
2.1 Thereafter, the petitioner on 25.01.2023 filed a
WP(C) No.66 of 2023 before this Court and on 01.02.2023, this
Court on the submission of the learned counsel of the petitioner
dismissed the petition as withdrawn with liberty reserved upon the
petitioner to file afresh.
2.2. Hence, the petitioner filed his present writ petition
seeking the following reliefs:-
" a. Admit the petition;
b. Call for the records.
C. Issue Writ of Certiorari calling upon the respondents
to show cause as to why the notification number F.2926)-
LAW/ESTT.2/2009/17509-556, dated- December 27, 2022, should not be
declared bad in law and quashed.
d. Issue writ of certiorari calling upon the respondents
to show cause as to why the full court recommendation dated 29.11.2022 of
the Hon‟ble High Court of Tripura should not be declared unreasonable,
unjustified and bad in law.
e. Issue writ of mandamus calling upon the respondents
to show cause as to why the petitioner should not to be allowed
reinstatement to his post of Civil Judge, Junior Division cum JM First Class
with all consequential reliefs.
f. Issue a writ of certiorari calling upon the respondent
to show cause as to why the order vide No.F.2(18)-DJ/KH/Acctt/2022/8386-
91 dated 21st November, 2022 passed by the learned District and Sessions
Judge, Khowai should not be declared bad in law and quashed.
g. Pass an interim order staying operation of notification
number F.2(26)-LAW/ESTT.2./2009/17509-556, dated- December 27, 2022
pending disposal of the writ petition.
h. Pass any other order(s) which Your Lordship may
deem fit and proper in the case."
3. Though Mr. C.S. Sinha, learned counsel is appearing on
behalf of the petitioner, but, it is submitted at the Bar that the
petitioner-in-person would argue for himself in this present matter.
3.1. The petitioner-in-person submits before this Court that
he has been a judicial officer under the Tripura Judicial Service and
on the recommendation of the Full Court meeting of this Court
dated 29.11.2022 resolving "his demeanour as unbecoming of a
judicial officer and his integrity as also doubtful", was discharged
from his services vide order of the Law Department, Government of
Triprua dated 27th December 2022.
3.2. The petitioner submits that the allegations of misconduct
against the petitioner are:-
a) The petitioner approached the Hon‟ble Minister of
State for Social Justice & Empowerment, Government of India for
recommending his transfer which was conceived by the Full Court
as a serious misconduct of exercising extraneous influence on the
authority of the Hon‟ble High Court of Tripura.
b) And, the comment of the District & Session
Judge, Khowai dated 30th May 2022 stating that she did not receive
any WhatsApp communication regarding the petitioner‟s acute
illness on 4th March 2022. However, the petitioner asserted that he
did inform was conceived by the Full Court that he had made a false
statement that he informed the District & Session Judge, Khowai
about his illness on 4th March 2022 which the Full Court considered
as serious misconduct on the part of the petitioner.
3.3. On the point of 1st allegation, the petitioner-in-person
submits that he did not approach the Minister of State for Social
Justice & Empowerment, Government of India for a
recommendation of transfer since the contents and particulars of
the petitioner's life and the letter itself proved an abhorrent and
reprehensible plot of conspiracy for creation of spurious foundation
for discharge of petitioner from service.
3.4. The petitioner-in-person on the 2nd point of allegation
submits that the comment of learned District and Sessions Judge,
Khowai dated 30th May, 2022 that she did not receive any
WhatsApp message about the petitioner's acute illness and that he
could not join office on 4th March 2022 is a deliberate fallacious
comment, since, the petitioner on 4th March 2022 has
communicated through WhatsApp to the District & Session Judge,
Khowai and the Assistant Sessions Judge, Khowai that he was
severely ill and could not join office that day. The petitioner still has
WhatsApp communication on his mobile phone with the District &
Sessions Judge, Khowai, and the Assistant Sessions Judge, Khowai.
Hence, the entire foundation of discharge of the petitioner is based
on spurious, planted & questionable materials and deliberate
incorrect reporting of the District & Sessions Judge, khowai.
3.5. The petitioner-in-person states that the impugned
order dated 27.12.2022 which indicates that his integrity and
services as a Judicial Officer is doubted creates a stigma. The said
discharge order has been passed without conducting an inquiry and
giving him opportunity and accordingly, the said order is liable to be
set aside. In addition to this, he also draws the attention of this
Court to the proceeding of the District Judge which indicates that
the House Rent Allowance(HRA) of Rs.23,500/- which was drawn by
the petitioner was reduced to Rs.12,128/-.
3.6. The petitioner-in-person on the point that a
probationer cannot be discharged from his service without inquiry,
referred to paras-12 and 14 of the Hon'ble Apex Court Judgment
dated 3rd December 2022 passed in Civil Appeal Nos.7841-
7842 of 2012 titled as State Bank of India and order Vs. Palak
Modi and another. The same is reproduced here-in-under:-
"12. In State of Punjab and another v. Sukh Raj
Bahadur (1968) 3 SCR 234, Mitter, J. considered several precedents and
culled out the following propositions:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
3. If the order visits the public servant with any
evil consequences or casts an aspersion against his character or integrity, it
must be considered to be one by way of punishment, no matter whether he
was a mere probationer or a temporary servant."
14. In Samsher Singh v. State of Punjab (1975) 1
SCR 814, a seven-Judge Bench considered the legality of the discharge of
two judicial officers of the Punjab Judicial Service, who were serving as
probationers. A. N. Ray, CJ, who wrote opinion for himself and five other
Judges made the following observations:
"No abstract proposition can be laid down that where
the services of a probationer are terminated without saying anything more
in the order of termination than that the services are terminated it can
never amount to a punishment in the facts and circumstances of the case. If
a probationer is discharged on the ground of misconduct, or inefficiency or
for similar reason without a proper enquiry and without his getting a
reasonable opportunity of showing cause against his discharge it may in a
given case amount to removal from service within the meaning of Article
311(2) of the Constitution.
The form of the order is not decisive as to whether the
order is by way of punishment. Even an innocuously worded order
terminating the service may, in the facts and circumstances of the case
establish that an enquiry into allegations of serious and grave character of
misconduct involving stigma has been made in infraction of the provision
of Article 311. In such a case, the simplicity of the form of the order will not
give any sanctity. That is exactly what has happened in the case of Ishwar
Chand Agarwal. The order of termination is illegal and must be set aside".
3.7. The petitioner-in-person to support his argument
also referred to the Act and the Headnote of the Hon'ble
Supreme Court Judgment reported in 1984 AIR 636 titled as
Anoop Jaiswal Vs. Government of India and anr., which is
produced herein other:-
"ACT:
Constitution of India-Art. 311 (2) - Applicability of Protection under Art.
311 (2) available if the order of discharge is found to be by way of
punishment. To see whether an order of discharge is by way of
punishment. form of the order is not decisive. Court must go behind the
form and ascertain the true character of the order.
HEADNOTE:
The appellant who had been selected for appointment in the Indian Police
Service was undergoing training as probationer in the National Police
Academy. On June 22, 1981 due to rain the appellant as well other
probationers reached late by a few minutes at the changed venue for
conducting P. T. For this delay explanation was called from all the
probationers. In his explanation the appellant sincerely regretted the
lapse. The appellant was considered to be one of the ring-leaders who was
responsible for the delay. The Director of the Academy without holding an
enquiry into the alleged misconduct recommended to the Government that
the appellant should be discharged from service. On the basis of that
recommendation the Government by its order dated November 9, 1981
discharged the appellant from service. The Government rejected the
appellant's representation against the order discharging him. The appellant
challenged the validity of the order under Art. 226 of the Constitution. The
High Court dismissed the petition at the admission stage. Hence this
appeal. The appellant contended that the order discharging him was in
reality an order terminating his services on the ground of misconduct and
as such could not have been passed without holding an enquiry as
contemplated under Art. 311(2) of the Constitution and the relevant rules
governing such an enquiry. Allowing the appeal,
HELD: The impugned order of discharge is set aside. Where the form of
the order is merely a camouflage for an order of dismissal for misconduct
it is always open to the Court before which the order is challenged to go
behind the form and ascertain the true character of the order. If the Court
holds that the order though in the form is merely a determination of
employment is in reality a cloak for an order of punishment, the Court
would not be debarred, merely because of the form of the order, in giving
effect to the rights conferred by law upon the employee. [563 E-F]
Parshotam Lal Dhingra v. Union of India, [1958] S. C. R. 828; Shamsher
Singh & Anr. v. State of Punjab, [1975] 1 S.C.R,. 814; State of Punjab &
Anr.
v. Shri Sukh Raj Bahadur, [1969] 3 S.C.C. 603; State of Bihar & Ors. v.
Shiya Bhikshuk Mishra, [1971] 2 S. C. R. 191; R.S. Sial v. The State of U.
P. & Ors., [1974] 3 S. C. R. 754; State of U.P. v. Ram Chandra Trivedi,
[1977] 1 S. C. R. 462; and I. N. Saksena v. State of Madhya Pradesh,
[1967] 2 S. C, R. 496; referred to.
In the instant case, on going through the record and taking into
account all the attendant circumstances the Court is satisfied that the
alleged act of misconduct on June 22, 1981 was the real foundation for the
action taken against the appellant and that the other instances stated in
the course of the counter affidavit are mere allegations which are put
forward only for purposes of strengthening the defence which is otherwise
very weak. The case is one which attracted Article 311 (2) of the
Constitution as the impugned order amounts to a termination of service by
way of punishment and an enquiry should have been held in accordance
with the said constitutional provision. That admittedly having not been
done, the impugned order is liable to be struck down".
3.8. Petitioner-in-person in support of his argument that
on the ground of misconduct if a Judicial Officer is discharged,
inquiry is required, he referred to para-11 of the Hon'ble
Supreme Court Judgments cited in [2012] 9 SCR 1141 titled as
Pradip Kumar Vs. Union of India dated 14th December, 2012
which is reproduced herein-under :-
"11. Nonetheless the order of discharge cannot be
upheld, as it is stigmatic and punitive in nature. It is a matter of record
that during three years of service no order was issued extending the
period of probation of the respondent. He completed the mandatory period
of probation on 21st November, 2007, therefore, it was expected of the
department to take a decision about the performance of the respondent
within a reasonable period from the expiry of one year. It is also a matter
of record that the respondent continued in service without receiving any
formal or informal notice about the defects in his work or any deficiency in
his performance. This Court, in the case of Sumati P. Shere Dr. Vs. Union
of India & Ors., emphasised the importance of timely communication of
defects and deficiencies in performance to a probationer, so that he could
make the necessary efforts to improve his work. Non-communication of his
deficiencies in work would render any movement order of such an
employee on the ground of unsuitability arbitrary. In Paragraph 5 of the
judgment, it is observed:-
"5. We must emphasise that in the relationship of master
and servant there is a moral obligation to act fairly. An informal, if not
formal, give-and-take, on the assessment of work of the employee should
be there. The employee should be made aware of the defect in his work
and deficiency in his performance. Defects or deficiencies; indifference or
indiscretion may be with the employee by inadvertence and not by
incapacity to work. Timely communication of the assessment of work in
such cases may put the employee on the right track. Without any such
communication, in our opinion, it would be arbitrary to give a movement
order to the employee on the ground of unsuitability."
3.9. Stating thus, the petitioner-in-person prays before this
Court that the impugned orders are hit by the Principle of Natural
Justice, and since no inquiry was conducted as contemplated under
Article 311 of the Constitution of India, the present writ petition
needs to be allowed with all benefits.
4. On the other hand, Mr. S.S. Dey, learned Advocate
General assisted by Ms. A. Chakraborty, learned counsel appearing
for the State-respondent submits that the petitioner was not
discharged on the ground of misconduct as evident after a bare
perusal of the discharge order dated 27th December 2023. The
petitioner was a probationer Judicial officer and not a civil servant.
As such, the petitioner is not covered under Article 311 of the
Constitution of India and a writ Court will not sit as an Appellate
Authority in the matter. The subjective satisfaction of the Full Court
on the Administrative side cannot be a matter of judicial discretion.
To strengthen his argument, the learned Advocate
General cited paras-13, 14, 16, 19, and 24 of the Hon'ble
Supreme Court Judgment dated 19.03.2020 cited in AIR 2020 SC
2811 titled as Rajasthan High Court Vs. Ved Priya and anr, the
same is produced herein under:-
"13. At the outset, we may observe that both the appellant as
well as the impugned judgment have elucidated the correct statement of law
regarding the width and sweep of judicial review by a High Court over the
decisions taken by its Full Court on administrative side. Although it would be a
futile task to exhaustively delineate the scope of writ jurisdiction in such matters
but a High Court under Article 226 has limited scope and it ought to interfere
cautiously. The amplitude of such jurisdiction cannot be enlarged to sit as an
„appellate authority‟, and hence care must be taken to not hold another possible
interpretation on the same set of material or substitute the Court‟s opinion for
that of the disciplinary authority. This is especially true given the responsibility
and powers bestowed upon the High Court under Article 235 of the Constitution.
The collective wisdom of the Full Court deserves due respect, weightage and
consideration in the process of judicial review.
14. The present case is one where the first respondent was a
probationer and not a substantive appointee, hence not strictly covered within the
umbrella of Article 311. The purpose of such probation has been noted in Kazia
Mohammed Muzzammil v. State of Karnataka:-
25. The purpose of any probation is to ensure that before the
employee attains the status of confirmed regular employee, he should
satisfactorily perform his duties and functions to enable the authorities to pass
appropriate orders. In other words, the scheme of probation is to judge the
ability, suitability and performance of an officer under probation. ..."
16. It is thus clear that the entire objective of probation is to provide
the employer an opportunity to evaluate the probationer‟s performance and test
his suitability for a particular post. Such an exercise is a necessary part of the
process of recruitment, and must not be treated lightly. Written tests and
interviews are only attempts to predict a candidate‟s possibility of success at a
particular job. The true test of suitability is actual performance of duties which
can only be applied after the candidate joins and starts working.
19. Probationers have no indefeasible right to continue in employment until
confirmed, and they can be relieved by the competent authority if found
unsuitable. Its only in a very limited category of cases that such probationers can
seek protection under the principles of natural justice, say when they are
„removed‟ in a manner which prejudices their future prospects in alternate fields
or casts aspersions on their character or violates their constitutional rights. In
such cases of „stigmatic‟ removal only that a reasonable opportunity of hearing is
sinequanon. Way back in Parshotam Lal Dhingra v. Union of India , a Constitution
Bench opined that:
"28.... In short, if the termination of service is founded on the
right flowing from contract or the service rules then, prima facie, the termination
is not a punishment and carries with it no evil consequences and so Article 311 is
not attracted. But even if the Government has, by contract or under the rules, the
right to terminate the employment without going through the procedure
prescribed for inflicting the punishment of dismissal or removal or reduction in
rank, the Government may, nevertheless, choose to punish the servant and if the
termination of service is sought to be founded on misconduct, negligence,
inefficiency or other disqualification, then it is a punishment and the requirements
of Article 311 must be complied with."
24. Even otherwise, it may not be true that just because there existed on record
some allegations of extraneous considerations that the High Court was precluded
from terminating the services of Respondent No.1 in a simplicitor manner while
he was on probation. The unsatisfactory performance of a probationer and
resultant dispensation of service at the end of the probation period, may not
necessarily be impacted by the fact that meanwhile there were some complaints
attributing specific misconduct, malfeasance or misbehavior to the probationer. If
the genesis of the order of termination of service lies in a specific act of
misconduct, regardless of over all satisfactory performance of duties during the
probation period, the Court will be well within its reach to unmask the hidden
cause and hold that the simplicitor order of termination, in fact, intends to punish
the probationer without establishing the charge(s) by way of an enquiry.
However, when the employer does not pickup a specific instance and forms his
opinion on the basis of over all performance during the period of probation, the
theory of action being punitive in nature, will not be attracted. Onus would thus
lie on the probationer to prove that the action taken against him was of punitive
characteristics".
4.1 The Learned Advocate General submitted that the
discharge order of the petitioner is not punitive but a discharge
simplicitor order. The discharge order of a probationer is guided by
Rule-15(4) of the Tripura Judicial Service Rules. 2003 which states
as under:-
"(4) At the end of the period of probation or officiation or the
extended period of probation or officaition, as the case may be, the High Court
shall consider the suitability of the person to hold the post /grade to which he is
appointed or promoted, and-
(i)xxxxxxxxxxxxxxxxxxxxxxxx
(ii) If the officer is not found suitable to hold the post/grade to
which he is appointed or promoted, as the case may be, the Governor on the
recommendation of the High Court or, as the case may be, the High Court, being
the appointing authority, shall
(a) if he is a promote revert him to the post/grade which he held
prior to his promotion;
(b) if he is a probationer, discharge him from service."
4.2. Further on the point of House Rent Allowance(HRA),
the learned Advocate General submits that only 24% of the basic
pay is the HRA that an employee is supposed to draw, and if that is
the case, Rs.27,000/- and odd was the basic salary of the
petitioner. Then the HRA would amount to around Rs.6,480/- to
which the petitioner is entitled, whereas, in the present case, the
petitioner was drawing around Rs.23,500/- as HRA which is not
permissible.
Stating this, the learned Advocate General urged
this Court to dismiss this writ petition.
5. Mr. B.N. Majumder, learned Sr. counsel assisted by
Mr. B. Paul, learned counsel submits that the impugned order
cannot be set aside as the same is legally sustainable. Mr.
Majumder, learned Sr. counsel referred to Rule 15(6) of the Judicial
Service Rules, 2003 wherein it is stated that:-
"(6) (i) Notwithstanding anything hereinabove, the appointing
authority as aforesaid may, at any time during the period of probation discharge
from service, a probationer on account of his unsuitability for the service.
(ii) An order under sub-Rule(1) shall indicate the grounds
for the discharge but no disciplinary enquiry shall be necessary.
[emphasis added]
This particular provision has not come under challenge
before this Court, so in the case of the petitioner, no inquiry needs
to be called for.
5.1. To strengthen his said argument, learned Sr.
counsel referred to para-18 of the Hon'ble Supreme Court
Judgment cited in 2010 AIR SCW 6007 titled as Khazia
Mohammed Muzammil Vs. State of Karnataka and ors., dated
08.07.2010 which is reproduced herein-under:-
"18. On a clear analysis of the above enunciated law,
particularly, the Seven Judge Bench judgment of this Court in the case of
Samsher Singh (supra) and three Judge Bench judgments, which are certainly
the larger Benches and are binding on us, the Courts have taken the view with
reference to the facts and relevant Rules involved in those cases that the
principle of `automatic' or `deemed confirmation' would not be attracted. The
pith and substance of the stated principles of law is that it will be the facts and
the Rules, which will have to be examined by the Courts as a condition
precedent to the application of the dictum stated in any of the line of the cases
afore noticed. There can be cases where the Rules require a definite act on the
part of the employer before officer on probation can be confirmed. In other
words, there may a Rule or Regulation requiring the competent authority to
examine the suitability of the probationer and then upon recording its
satisfaction issue an order of confirmation. Where the Rules are of this nature
the question of automatic confirmation would not even arise. Of course, every
authority is expected to act properly and expeditiously. It cannot and ought
not to keep issuance of such order in abeyance without any reason or
justification. While there could be some other cases where the Rules do not
contemplate issuance of such a specific order in writing but merely require that
there will not be any automatic confirmation or some acts, other than issuance
of specific orders, are required to be performed by the parties, even in those
cases it is difficult to attract the application of this doctrine. However, there will
be cases where not only such specific Rules, as noticed above, are absent but
the Rules specifically prohibit extension of the period of probation or even
specifically provide that upon expiry of that period he shall attain the status of
a temporary or a confirmed employee. In such cases, again, two situations
would rise: one, that he would attain the status of an employee being eligible
for confirmation and second, that actually he will attain the status of a
confirmed employee. The Courts have repeatedly held that it may not be
possible to prescribe a straight jacket formulae of universal implementation for
all cases involving such questions. It will always depend upon the facts of a
case and the relevant Rules applicable to that service.
[emphasis added]
5.2. To support his argument, learned Sr. counsel
heavily relied upon the Paras-3, 10, 11, and 12 Judgment of the
Hon'ble Supreme Court cited in AIR 2011 SCW 1874 titled as
Rajesh Kumar Srivastava Vs. State of Jharkhand and ors.,
dated 10.03.2011 which is reproduced herein-under:-
"3. After completing his training period, a notification
was issued on 21.05.2002, appointing him as a Probationer Munsif. The said
notification was issued by the Government of Jharkhand. He was posted at
Dhanbad by a notification issued by the High Court. On 04.06.2002, he
assumed the charge as Probationer Munsif at Dhanbad. On 15.07.2002, he
was conferred with the power of Judicial Magistrate 1st Class. While he was
discharging his duties as such, he passed an order on 06.01.2003,
discharging all the accused under Section 239 Cr.P.C. in G.R. No. 4698 of
1995 under Sections 406, 408, 420, 120-B IPC.
10. The records placed before us disclose that at the
time when the impugned order was passed, the appellant was working as a
Probationer Munsif. A person is placed on probation so as to enable the
employer to adjudge his suitability for continuation in the service and also
for confirmation in service. There are various criteria for adjudging
suitability of a person to hold the post on permanent basis and by way of
confirmation. At that stage and during the period of probation the action
and activities of the appellant are generally under scrutiny and on the basis
of his overall performance a decision is generally taken as to whether his
services should be continued and that he should be confirmed, or he should
be released from service. In the present case, in the course of adjudging
such suitability it was found by the respondents that the performance of the
appellant was not satisfactory and therefore he was not suitable for the job.
The aforesaid decision to release him from service was taken by the
respondents considering his overall performance, conduct and suitability for
the job. While taking a decision in this regard neither any notice is required
to be given to the appellant nor he is required to be given any opportunity
of hearing. Strictly speaking, it is not a case of removal as sought to be
made out by the appellant, but was a case of simple discharge from service.
It is, therefore, only a termination simpliciter and not removal from service
on the grounds of indiscipline or misconduct. While adjudging his
performance, conduct and overall suitability, his performance record as also
the report from the higher authorities were called for and they were looked
into before any decision was taken as to whether the officer concerned
should be continued in service or not.
11. In a recent decision of this Court in Rajesh Kohli vs. High Court of J &
K & Anr. reported at (2010) 12 SCC 783: 2010 (10) JT 276, almost a similar
issue cropped up for consideration, in which this Court has held that the
High Court has a solemn duty to consider and appreciate the service of a
judicial officer before confirming him in service and for this not only judicial
performance but also probity as to how one has conducted himself is
relevant and important. It was also held in the same decision that upright
and honest judicial officers are needed in the district judiciary, which is the
bedrock of our judicial system.
12. The order of termination passed in the present case is a fall out of his
unsatisfactory service adjudged on the basis of his overall performance and
the manner in which he conducted himself. Such decision cannot be said to
be stigmatic or punitive. This is a case of termination of service simpliciter
and not a case of stigmatic termination and therefore there is no infirmity in
the impugned judgment and order passed by the High Court.
5.3. Mr. B.N. Majumder, learned Sr. counsel further
draws the attention of this Court to the Order dated 17 th June, 2019
indicating that the Officer by virtue of his transfer is entitled to
claim the actual i.e., 100 % of the HRA which is rental allowance to
the satisfaction of the Unit Head i.e., District Judge or the
Administrative Head and prayed that the writ petition be dismissed.
5.4. Learned Sr. counsel appearing for the respondent-
High Court further states the discharge order of the petitioner was a
discharge simplicator and stated that the Hon'ble High Court of
Tripura on 09.03.2022 received one confidential report that learned
District & Sessions Judge, Khowai, wherefrom, it is revealed that
the petitioner was found unavailable in his Court/chamber during
several visits of the learned District Judge & Sessions Judge Khowai.
6. At the fag end of the argument, petitioner-in-
person submits that the observation given in the impugned Full
Court dated 29.11.2022 that the petitioner's "demeanour is
unbecoming of a judicial officer and his integrity is also doubtful" is
the stigma and the Full Court of this Court came to the said
conclusion based on the flawed materials and reports. The said
observation of the Full Court is hampering the future employment
prospects of the petitioner. Further, the order of discharge is a
punitive order that is also without inquiry.
7. Heard learned counsel appearing for both the
parties and perused the evidence on record.
8. Before coming to the conclusion of this case, let us
examine the allegations against the petitioner herein.
8.1. The 1st allegation against the petitioner is that the
petitioner approached the Hon'ble Minister of State for Social Justice
& Empowerment, Government of Tripura for recommending his
transfer which was conceived by the Full Court of this Court as an
attempt to exercise extraneous influence on the authority over the
Hon'ble High Court of Tripura.
8.2. Here the petitioner contended that he did not
approach the Hon'ble Minister for State for issuing any such letter
or even the contents of the D.O letter prove that the same has
been done for the creation of a spurious foundation for discharge of
petitioner from service. Here, it is seen from the record that the
Registry of the High Court of Tripura received a D.O. letter dated
14.06.2022 from the Hon'ble Minister of State for Social Justice &
Empowerment, Government of India, New Delhi with a
recommendation for transfer of the petitioner from Khowai District
to West Tripura District/Sepahijala District or any other District
adjacent to his house. Registrar(Vigilance) of this High Court vide
letter dated 12th July, 2022 sought an explanation from the
petitioner on the said issue within seven days from the date of
receipt of the communication. The petitioner herein received the
said letter in the afternoon of 18th July, 2022, but relied on the
same vide letter dated 22nd July 2022 simply stating that he did not
approach the Hon'ble Minster of State for Social Justice &
Empowerment regarding the recommendation of his transfer from
his present place of posting to other station. It is seen from the
record that on 11.05.2022, the petitioner made a prayer before the
Registrar General of this Court for his transfer to any station near
his residence at Agartala. The ground stated by the petitioner for
such transfer was the ill health of his parent and being the only son,
he is unable to take care of them. The matter was placed before the
authority, wherein it was observed by order dated 23.05.2022 that
the petitioner against whom show cause notice was issued should
not be transferred and again the matter was referred to the Full
Court. The Full Court by its resolution dated 02.06.2022 rejected
the prayer of the petitioner. It is at that point, the High Court
received the same D.O. letter from the Hon'ble Minister of State
requesting consideration of his transfer as stated herein-above.
From the said D.O. letter, it transpired that the petitioner had
approached the Minister for his transfer. On this Point, the
petitioner was noticed asking explanation of the same by order
dated 08.07.2022, the petitioner replied to the said notice by his
letter dated 22.07.2022 stating that he has not approached the
Minister. After proper perusal of the conduct of the petitioner in
approaching before the Registry of this Court for his transfer and
thereafter issuance of a D.O. letter by a Hon'ble Minster of State
recommending his transfer inspires high suspicious in the mind of
this Court that the D.O. letter of Hon'ble Minister of State was
issued without the petitioner approaching the Hon'ble Minister and
the same was 'Act of God‟. This Court is not in a position to accept
the contention of the petitioner that the Hon'ble Minister of State
for Social Justice & Empowerment, Government of India issued a
letter recommending his transfer without the knowledge of the
petitioner. The petitioner contents that he does not know the
Hon'ble Minister of State and he further contents that somebody to
defame the petitioner with a malafide intention had played the said
game behind the back and he pleads innocence to that effect. The
said submission is hypothetical and cannot be accepted. This Court
feels that such conduct of the petitioner is unbecoming of a Judicial
Officer. So, according to this Court, the petitioner has not been able
to prove his innocence on this point.
9. The 2nd part of the allegation that the petitioner
overstayed his leave and was found unavailable in several visits of
the Learned District and Sessions Judge, Khowai.
9.1. A bare perusal of the evidence on record reveals
that this Hon'ble High Court of Tripura on 09.03.022 received one
confidential report from the learned District & Sessions Judge,
Khowai, wherefrom it is revealed that the petitioner was found
unavailable in his Court/Chamber during several visits of the
learned District and Sessions Judge, Khowai.
9.2. The learned District and Sessions Judge, Khowai
further stated that the petitioner was granted two days' casual
leave and permission to leave the station until resumption of his
duty on 04.03.2022, but, the petitioner overstayed for a further two
days without sanction of such leave and even without making any
application seeking leave after joining. Learned District Judge
further informed that the petitioner in spite of being informed
absented himself in the office during the visit of Hon'ble Mr. Justice
A. Lodh to Khowai on 05.03.2022. On receipt of such letter, the
petitioner was issued a show cause notice which he replied by his
letter his letter dated 04.04.2022. The petitioner stated that during
the period of leave on 2nd and 3rd March, 2022, he fell seriously ill
and he joined on 7th March, 202. The petitioner also stated that
during the visit of the learned District Judge, Khowai to his Court
and chamber, he was in his rented accommodation to attend
nature's call as there is no lavatory attached to his chamber. The
petitioner also stated that he was not communicated about the visit
of the learned District and Sessions Judge, Khowai by his Bench
Clerk. The learned District and Sessions Judge, Khowai immediately
called the said Bench Clerk and he admitted that he did not intimate
the fact of such visit to the petitioner and at once the said Bench
Clerk was transferred to another Court by learned District and
Sessions Judge, Khowai. Regarding overstay, the petitioner stated
that he communicated his illness over WhatsApp to the learned
District & Sessions Judge, Khowai. The petitioner also mentioned
that on the date of the visit of Hon'ble Mr. Justice A. Lodh, he was
seriously ill to attend the Court.
9.3. Thereafter, the High Court sought comments from
the learned District and Sessions Judge, Khowai. The learned
District and Sessions Judge Khowai stated that it came to her
knowledge that no staff member informed the visit of learned
District & Sessions Judge Khowai and at the same time, the learned
District and Sessions Judge denied having received any whatsApp
communication regarding illness of the petitioner. The said reply
was placed before the authority, it was observed that the petitioner
made a false statement which manifested serious wrong and the
matter was referred to the Full Court. Thereafter the Full Court after
considering the reply of the petitioner and report of the learned
District Judge came to the conclusion as mentioned here-in-above.
This Court feels that the comments of the learned District Judge
clearly proved that the petitioner made a false statement regarding
the said issue. Further, it is seen from the above observation that
the petitioner has had a series of excuses without proper reasoning
on various occasions, which creates doubt in the mind of this Court
on the reasoning of the excuses for not remaining present in his
Court/Chamber.
10. On the point that the petitioner was discharged
from his service without inquiry, this Court again seeks to reproduce
Rule 15(6) of the Judicial Service Rules, 2003 wherein it is stated
thus:-
"(6) (i) Notwithstanding anything hereinabove, the appointing
authority as aforesaid may, at any time during the period of probation discharge
from service, a probationer on account of his unsuitability for the service.
(ii) An order under sub-Rule(1) shall indicate the grounds
for the discharge but no disciplinary enquiry shall be necessary.
[emphasis added]
10.1. The petitioner was a probationer at the time of his
discharge and this particular provision has not come under
challenge before this Court. As such, inquiry in the case of the
petitioner is not called for.
10.2. Further, this Court is of the view that the discharge
order of the petitioner is order simplicater and not punitive in nature
and the same is guided by Rule-15(4) of the Tripura Judicial Service
Rules. 2003. The same is again reproduced herein-under:-
"(4) At the end of the period of probation or officiation or the
extended period of probation or officaition, as the case may be, the High Court
shall consider the suitability of the person to hold the post /grade to which he is
appointed or promoted, and-
(i)xxxxxxxxxxxxxxxxxxxxxxxx
(ii) If the officer is not found suitable to hold the post/grade to
which he is appointed or promoted, as the case may be, the Governor on the
recommendation of the High Court or, as the case may be, the High Court, being
the appointing authority, shall
(a) if he is a promote revert him to the post/grade which he held
prior to his promotion;
(b) if he is a probationer, discharge him from service."
[emphasis added]
11. Further, this Court agrees with the submission of
learned Advocate General that the petitioner was a probationer
Judicial officer and not a civil servant. As such, the petitioner is not
covered under Article 311 of the Constitution of India. The service
rule of the petitioner being a Judicial Officer is covered by Judicial
Service Rules. 2003. Further the ambit of the Article 311 of the
Constitution of India pertains to the permanent employees.
12. On the point of House Rent Allowance (HRA), this Court is
in consonance with the submission of learned Advocate General that
only 24% of the basic pay is the HRA that an employee is supposed to
draw. In that case, Rs.27,000/- and odd was the basic salary of the
petitioner, then, the HRA would amount to around Rs.6,480/- to which
the petitioner is entitled, whereas, in the present case, the petitioner
was drawing around Rs.23,500/- as HRA which is not permissible.
13. In terms of the above discussions and findings, the
Judgments as cited by the petitioner-in-person are not relevant to the
fact of this present case.
14. Petitioner -in - person during his argument submits that
the observation given in the impugned Full Court dated 29.11.2022
that the petitioner's "demeanour is unbecoming of a judicial officer
and his integrity is also doubtful" is the stigma and the same is
hampering the future employment aspect of the petitioner. Here it is
to be observed that in view of the above discussed facts and
circumstance; it is optimally clear that the conduct of the petitioner
is unbecoming of a Judicial Officer and doubtful. However, this
Court is of the opinion to take a lenient view and keeping the
career of petitioner in mind, the observation given by the Full Court
that the petitioner's "demeanour is unbecoming of a judicial officer
and his integrity is also doubtful", the same could be replaced with
the observation that "the conduct of the petitioner is unbecoming of
Judicial Officer and doubtful" and the same is ordered. With the
above modification, the impugned notification issued for discharging
the petitioner from service is affirmed and upheld.
15. In view of the above the writ petition stands
dismissed. As a sequel, stay if any stands vacated. Pending
application(s), if any also stands closed.
B. PALIT, J T. AMARNATH GOUD, J
suhanjit
RAJKUMAR Digitally
RAJKUMAR
signed by
SUHANJIT SUHANJIT SINGHA
Date: 2024.01.30
SINGHA 13:57:12 +05'30'
