No interested party to adjudge: Supreme Court

Nemo debet esse judex in propria causa is one the well established maxims ingrained as fundamentals of natural justice. Denoting that no person should be a judge in his own cause, the doctrine against bias and (conversely, of fair-play) require that the person judging a cause should not be a person interested in the outcome of the cause. This is further relatable to the requirement of a fair hearing that justice should not only be done but also seem to be done. Thus no matter whether bias has actually percolated in the system, the system should be arranged in a manner that the presence of bias is ruled out. Thus on this account also interested parties should not serve to adjudicate disputes. 

It is in the context of these doctrines that the Supreme Court in a recent decision has set aside an order passed by a person who had earlier appeared as a witness in the same matter and against the same person. The Court was dealing with the challenge to the validity of disciplinary proceedings where during inquiry a person had appeared as a witness and then during trial the same person had went on to adjudicate and incriminate the accused. Setting aside the trial, holding it to have been conducted in violation of the rules of fair play, the Supreme Court explained the law in the following terms;

21. Rule 13 of the Rules 1991 reads as under:

“Officer not competent to conduct disciplinary proceedings- A gazetted officer of the Police Force who is either a prosecution witness in the case or has either conducted a preliminary enquiry in that case shall not conduct inquiry in that case under these rules. In case the said gazetted officer is the Superintendent of Police himself, the Deputy Inspector-General concerned shall be moved to transfer the case to some other district or unit as the case may be.”

It is evident from the aforesaid rule that a person who is a witness in a case can neither initiate the disciplinary proceedings nor pass an order of punishment.

22. A Constitution Bench of this Court in State of U.P. v. Mohd. Noor, AIR 1958 SC 86, rejected a submission made on behalf of the State that there was nothing wrong with the Presiding Officer of a Tribunal appearing as a witness and deciding the same case, observing as under:

“The two roles could not obviously be played by one and the same person…….the act of Shri B. N. Bhalla in having his own testimony recorded in the case indubitably evidences a state of mind which clearly discloses considerable bias against the respondent. If it shocks our notions of judicial propriety and fair play, as indeed it does, it was bound to make a deeper impression on the mind of the respondent as to the unreality and futility of the proceedings conducted in this fashion. We find ourselves in agreement with the High Court that the rules of natural justice were completely discarded and all canons of fair play were grievously violated by Shri. B.N. Bhalla continuing to preside over the trial. Decision arrived at by such process and order founded on such decision cannot possibly be regarded as valid or binding.”

23. A similar view was taken by this Court in Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-education) Higher Secondary School & Ors., AIR 1993 SC 2155, observing that a person cannot be a witness in the enquiry as well as the inquiry officer.

24. The legal maxim “nemo debet esse judex in propria causa” (no man shall be a judge in his own cause) is required to be observed by all judicial and quasi-judicial authorities as non-observance thereof is treated as a violation of the principles of natural justice. (Vide Secretary to Government, Transport Department v. Munuswamy Mudaliar & Anr., AIR 1988 SC 2232; Meenglas Tea Estate v. The Workmen, AIR 1963 SC 1719; and Mineral Development Ltd. v. The State of Bihar & Anr., AIR 1960 SC 468).

25. This Court in A.U. Kureshi v. High Court of Gujarat & Anr., (2009) 11 SCC 84, placed reliance upon the judgment in Ashok Kumar Yadav & Ors. v. State of Haryana & Ors., (1985) 4 SCC 417, and held that no person should adjudicate a dispute which he or she has dealt with in any capacity. The failure to observe this principle creates an apprehension of bias on the part of the said person. Therefore, law requires that a person should not decide a case wherein he is interested. The question is not whether the person is actually biased but whether the circumstances are such as to create a reasonable apprehension in the minds of others that there is a likelihood of bias affecting the decision.

26. The existence of an element of bias renders the entire disciplinary proceedings void. Such a defect cannot be cured at the appellate stage even if the fairness of the appellate authority is beyond dispute. (Vide: S. Parthasarthy v. State of Andhra Pradesh, AIR 1973 SC 2701; and Tilak Chand Magatram Obhan v. Kamla Prasad Shukla & Ors., 1995 Supp. (1) SCC 21).

27. In Arjun Chaubey v. Union of India & Ors., AIR 1984 SC 1356, a Constitution Bench of this Court dealt with an identical case wherein an employee serving in the Northern Railway had been dismissed by the Deputy Chief Commercial Superintendent on a charge of misconduct which concerned himself, after considering by himself, the explanation given by the employee against the charge and after thinking that the employee was not fit to be retained in service. It was also considered whether in such a case, the court should deny the relief to the employee, even if the court comes to the conclusion that order of punishment stood vitiated on the ground that the employee had been guilty of habitual acts of indiscipline/ misconduct. This Court held that the order of dismissal passed against the employee stood vitiated as it was in utter disregard of the principles of natural justice. The main thrust of the charges against the employee related to his conduct qua the disciplinary authority itself, therefore, it was not open to the disciplinary authority to sit in judgment over the explanation furnished by the employee and decide against the delinquent. No person could be a judge in his own cause and no witness could certify that his own testimony was true. Any one who had a personal stake in an enquiry must have kept himself aloof from the enquiry. The court further held that in such a case it could not be considered that the employee did not deserve any relief from the court since he was habitually guilty of acts subversive of discipline. The illegality from which the order of dismissal passed by the Authority concerned suffered was of a character so grave and fundamental that the alleged habitual misbehaviour of the delinquent employee could not cure or condone it.

28. Thus, the legal position emerges that if a person appears as a witness in disciplinary proceedings, he cannot be an inquiry officer nor can he pass the order of punishment as a disciplinary authority. This rule has been held to be sacred. An apprehension of bias operates as a disqualification for a person to act as adjudicator. No person can be a Judge in his own cause and no witness can certify that his own testimony is true. Any one who has personal interest in the disciplinary proceedings must keep himself away from such proceedings. The violation of the principles of natural justice renders the order null and void.

The Court went on to explain that even though a strict regime applied to personnel of armed forces, only on account of the fact that they were governed by different rules did not imply that they lost their fundamental rights guaranteed under the Constitution to all citizens. The Supreme Court declared this position in a thumping tone, having recourse to its earlier decision on the issue, in the following terms;

15. We have to proceed, keeping in mind the trite law that holding disciplinary proceedings against a government employee and imposing a punishment on his being found guilty of misconduct under the statutory rules is in the nature of quasi-judicial proceedings. Though, the technical rules of procedure contained in the Code of Civil Procedure, 1908 and the provisions of the Indian Evidence Act, 1872 do not apply in a domestic enquiry, however, the principles of natural justice require to be observed strictly. Therefore, the enquiry is to be conducted fairly and reasonably and the enquiry report must contain reasons for reaching the conclusion that the charge framed against the delinquent stood proved against him. It cannot be an ipse dixit of the inquiry officer. Punishment for misconduct can be imposed in consonance with the statutory rules and principles of natural justice. (See Bachhittar Singh v. State of Punjab & Anr., AIR 1963 SC 395; Union of India v. H.C. Goel, AIR 1964 SC 364; Anil Kumar v. Presiding Officer & Ors., AIR 1985 SC 1121; Moni Shankar v. Union of India & Anr. (2008) 3 SCC 484; and Union of India & Ors. v. Prakash Kumar Tandon, (2009) 2 SCC 541).

16. The Tribunal has categorically held that absence of the appellant from duty for such a short span of time was permissible in view of the statutory rules and was bona fide. That finding was not challenged by the respondents any further and attained finality. This finding of the Tribunal leads us to the questions that in case the first punishment of 10 days punishment drill was unwarranted and illegal; whether any protest against such punishment, authorised the Commandant to enhance the punishment to 10 days confinement in a cell; and whether further disobedience thereof, ought to have enabled the Commandant to initiate the disciplinary proceedings against the appellant. These questions have to be considered keeping in mind that the appellant was a member of disciplined force and the Appellate Authority as well as the Tribunal had very heavily relied on the past conduct of the appellant for considering the proportionality of the punishment, though it had not been a part of the charge-sheet nor was the appellant informed of the same while issuing the second show cause notice, giving him the opportunity to make his representation against the enquiry report.

17. In Union of India & Ors. v. L.D. Balam Singh, (2002) 9 SCC 73, this Court observed as under: 

“….the extent of restrictions necessary to be imposed on any of the fundamental rights in their application to the armed forces and the forces charged with the maintenance of public order for the purpose of ensuring proper discharge of their duties and maintenance of discipline among them would necessarily depend upon the prevailing situation at a given point of time and it would be inadvisable to encase it in a rigid statutory formula. The Constitution-makers were obviously anxious that no more restrictions should be placed than are absolutely necessary for ensuring proper discharge of duties and the maintenance of discipline amongst the armed force personnel”. 

18. In Lt. Col. Prithpal Singh Bedi v. Union of India & Ors., AIR 1982 SC 1413, this Court observed: 

“It is one of the cardinal features of our Constitution that a person by enlisting in or entering armed forces does not cease to be a citizen so as to wholly deprive him of his rights under the Constitution…. Persons subject to Army Act are citizens of this ancient land having a feeling of belonging to the civilised community governed by the liberty-oriented constitution. Personal liberty makes for the worth of human being and is a cherished and prized right. Deprivation thereof must be preceded by an enquiry ensuring fair, just and reasonable procedure and trial”.

19. In R. Viswan & Ors. v. Union of India & Ors., AIR 1983 SC 658, Constitution Bench of this Court observed: 

“Morale and discipline are indeed the very soul of an army and no other consideration, howsoever important, can outweigh the need to strengthen the morale of the Armed Forces and to maintain discipline amongst them. Any relaxation in the matter of morale and discipline may prove disastrous and ultimately lead to chaos and ruination affecting the well being and imperilling the human rights of the entire people of the country”. 

20. Thus, the requirements of morale, discipline and justice have to be reconciled. There is no scarcity of examples in history, and we see it in day-to-day life also, that even in disciplined forces, forced morale and discipline without assured justice breeds defiance and belligerency. Our Constitution protects not only the life and liberty but also the dignity of every person. Life convicts and hardcore criminals deprived of personal liberty are also not wholly denuded of their Constitutional rights. Arbitrariness is an anathema to the principles of reasonableness and fairness enshrined in our constitutional provisions. The rule of law prohibits the exercise of power in an arbitrary manner and/or in a manner that travels beyond the boundaries of reasonableness. Thus, a statutory authority is not permitted to act whimsically/arbitrarily. Its actions should be guided by the principles of reasonableness and fairness. The authority cannot be permitted to abuse the law or to use it unfairly.

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Misconduct in government office: The law revisited

Government officers are required to act within the standards of conduct prescribed in their respective manuals. The decorum which is to be maintained is quiet often of high standards in the wake of national prestige resting upon the actions of these personnel. In this wake it is not unoften that we come across discharge of a government officer on account of misconduct. However what is misconduct is quiet often left undefined. It might be a simple breach of a rule or may be violation of the spirit rather than the letter. 

In a recently reported decision [2010 (171) DLT 556] a Division Bench of the Delhi High Court has explained the meaning underlying "misconduct" as quiet often used in governmental quarters and has also clarified its ambit. While reflecting that the term would have to be examined in the context of the particular service one was referring, the High Court indeed laid out the generic scheme underlying the concept.

The High Court inter alia observed as under;

27. Now, can it be said that an offence of failure to maintain devotion to duty and/or unbecoming of a government servant can never be a grave misconduct?

28. 'Misconduct' has been defined in Black's Law Dictionary, Sixth Edition at page 999, thus:

“A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness.

29. 'Misconduct in office' has been defined as:

“Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.”

30. In P.Ramanatha Aiyar's Law Lexicon, 3rd Edition, at page 3027, the term 'misconduct' has been defined as under:-

“The term 'misconduct' implies, a wrongful intention, and not involving error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word 'misconduct' is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. 'Misconduct' literally means wrong conduct or improper conduct.” 

31. The Supreme Court in the case reported as 1992 (4) SCC 54 State Bank of Punjab & Ors. vs. Ram Singh Ex Constable discussed and decided what misconduct is. The relevant paras of the judgment are reproduced below:-

“In usual parlance, misconduct means transgression of some established and defined rule of action, where no discretion is left, except that necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where, some direction is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected.” “Thus it could be seen that the word „misconduct‟ though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character, forbidden act, a transgression of established and definite rule of action or code of conduct but not mere of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.”

32. Having understood what misconduct is, it becomes easy to understand what a grave misconduct would be. It has to be the aggravated form of misconduct. 

33. Acts of moral turpitude, acts of dishonesty, bribery and corruption would obviously be an aggravated form of misconduct because of not only the morally depraving nature of the act but even the reason that they would be attracting the penal laws. There would be no problem in understanding the gravity of such kind of offences. But that would not mean that only such kind of indictments would be a grave misconduct. A ready example to which everybody would agree with as a case of grave misconduct, but within the realm of failure to maintain devotion to duty, would be where a fireman sleeps in the fire office and does not respond to an emergency call of fire in a building which ultimately results in the death of 10 persons. There is no dishonesty. There is no acceptance of bribe. There is no corruption. There is no moral turpitude. But none would say that the act of failure to maintain devotion to duty is not of a grave kind.

34. It would be difficult to put in a strait jacket formula as to what kinds of acts sans moral turpitude, dishonesty, bribery and corruption would constitute grave misconduct, but a ready touchstone would be where the „integrity to the devotion to duty‟ is missing and the „lack of devotion‟ is gross and culpable it would be a case of grave misconduct. The issue needs a little clarification here as to what would be meant by the expression „integrity to the devotion to duty‟. Every concept has a core value and a fringe value. Similarly, every duty has a core and a fringe. Whatever is at the core of a duty would be the integrity of the duty and whatever is at the fringe would not be the integrity of the duty but may be integral to the duty. It is in reference to this metaphysical concept that mottos are chosen by organizations. For example in the fire department the appropriate motto would be: „Be always alert‟. It would be so for the reason the integrity of the duty of a fire officer i.e. the core value of his work would be to be „always alert‟. Similarly, for a doctor the core value of his work would be „duty to the extra vigilant‟. Thus, where a doctor conducts four operations one after the other and in between does not wash his hands and change the gloves resulting in the three subsequent patients contacting the disease of the first, notwithstanding there being no moral turpitude involved or corruption or bribery, the doctor would be guilty of a grave misconduct as his act has breached the core value of his duty. The example of the fireman given by us is self explanatory with reference to the core value of the duty of a fireman to be „always alert‟.

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National Green Tribunal constituted

We had earlier reported about the enactment of the National Green Tribunal Act, 2010 to comment that country's environment gets a pro-active watchdog. The Government of India was granted the authority to notify the Act such that it could begin to function. By a series of three notifications on 18.10.2010 the Ministry of Environment and Forest, Government of India has constituted the National Green Tribunal, has set the ball rolling by bring into effect the provisions of the Act and has appointed a retired judge of the Supreme Court as the Chairman of the Tribunal.

For the benefit of our readers, we are reproducing the text of the Notifications below.

S.O.2569(E) dated 18.10.2010

F.No.17/2/2010-PL

Ministry of Environment and Forests, New Delhi

In exercise of the powers conferred by sub-section (2) of Section 1 of the National Green Tribunal Act, 2010 (19 of 2010), the Central Government hereby appoints the 18th day of October, 2010, as the date on which all the provisions of the said Act shall come into force.

Sd/- (Rajneesh Dube) Jt. Secy.

S.O.2570(E) dated 18.10.2010
F.No.17/2/2010-PL
Ministry of Environment and Forests, New Delhi

In exercise of the powers conferred by Section 3 of the National Green Tribunal Act, 2010 (19 of 2010), the Central Government hereby establishes “The National Green Tribunal” to exercise the jurisdiction, powers and authority conferred on it by or under the said Act.

Sd/- (Rajneesh Dube) Jt. Secy.

S.O.2571(E) dated 18.10.2010

F.No.17/2/2010-PL
Ministry of Environment and Forests, New Delhi

In exercise of the powers conferred by sub-section (1) and (2) of Section 6 and Section 7 of the National Green Tribunal Act, 2010 (19 of 2010), the Central Government hereby appoints Shri Justice L.S. Panta, Former Judge of the Supreme Court as the Chairperson of the National Green Tribunal with effect from the date of publication of this notification in the Official Gazette for a period of five years or till he attains the age of seventy years, whichever is earlier. 

Sd/- (Rajneesh Dube) Jt. Secy.

Overtime not mandatory: High Court

In a recently reported decision [National Airport Authority v. Sudershan Kumar 2010 (171) DLT 468] the Delhi High Court has declared that overtime is not mandatory in all government offices. Holding that the requirement to pay overtime depended upon the rules and conditions attached the work one is performing and that overtime was not an inviolable concept, the High Court declared that an employee in a scheduled employment drawing more than minimum wages is not entitled to overtime at double the rate as prescribed under the Minimum Wags Act and the Rules made thereunder.

The High Court inter alia observed as under;

15. I may however state my reasons for preferring the view in Municipal Council, Hatta, of the employee even if in scheduled employment but drawing more than minimum wages and enjoying better terms of employment than under the Act and the Rules, being not entitled to overtime at double the rate as provided in the Rules. The Minimum Wages Act, 1948 was only intended to secure minimum wages and certain other conditions in scheduled employment. It was not intended to and/or is not a legislation to otherwise govern the contract of employment between an employer and an employee drawing more than the minimum wages, even in scheduled employment. If an employee in a scheduled employment is drawing more than the notified minimum wages and enjoying amenities, facilities and conditions of employment better than those provided under the Act and the Rules, then holding the provisions of the Act to be still applicable to the employee would tantamount to the legislature interfering in terms of employment in the scheduled industry rather than securing minimum wages and related conditions of employment in such employment. The Supreme Court in Beed District Central Co-operative Bank Ltd. Vs. State of Maharashtra (2006) 8 SCC 514 held that even while interpreting a beneficient statute (in that case the Payment of Gratuity Act) either a contract has to be given effect to or the statute. It was held that the Gratuity Act under consideration in that case, did not contemplate that the workmen would be at liberty to opt for better terms of the contract while keeping the option open in respect of a part of the statute; he has to opt for either of them and not the best of the terms of statute as well as those of the contract and that he cannot have both. A reading of the Minimum Wages Act, 1948 also shows that its scheme is to ensure fixing of hours of work and minimum wages therefor. It also does not envisage interference with the terms of employment even in scheduled establishments where workmen/employees are enjoying wages more than the minimum and working hours/conditions better than those prescribed in the Act. Section 14 of the Act provides for work over and above the time for which the workman is to work in lieu of minimum wages. If the workman is working for lesser hours than those for which he is required to work to earn the minimum wage, then the computation of overtime as done in the Rules on the said premise cannot be made applicable to him.

16. Section 25 of the Act makes a contract whereunder an employee relinquishes or reduces his right to a minimum rate of wages or any privilege or concession accruing to him under the Act null and void to the extent it purports to reduce the minimum rate of wages fixed under the Act. Unless the Act is held inapplicable to those scheduled employments where payment is being made at rates in excess of the minimum wages, the contract or agreement for payment of overtime at rates lesser than the double rate would become null and void. Section 26(2) of the Act empowers the appropriate government to, by notification, exempt the employees employed in scheduled employment from applicability of the Act or certain provisions thereof. Ideally, the appropriate Government should in exercise of the said power notify that the provisions of the Act shall not apply to those in scheduled employment earning more than minimum wages and enjoying working conditions better than those prescribed in the Act.

17. For the reasons aforesaid, the petition has to succeed and the order of the Authority under the Minimum Wages Act, 1948 is struck down/quashed. The Rule issued earlier is made absolute. However in the facts of the case, the parties are left to bear their own costs.

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Termination for unsatisfactory service not stigmatic: Supreme Court

In a recent decision [Rajesh Kohli v. High Court of Jammu & Kashmir] the Supreme Court has declared that even if a person is removed from service on ground of unsatisfactory performance, the same cannot be contended as being stigmatic against the discharged employee. The Supreme Court was dealing with the challenge to an administrative order of the Jammu & Kashmir High Court in discharging (and thus not confirming) the services of a probationary judge in lower courts where the High Court had discharged the probationer noting unsatisfactory conduct. Not only the Supreme Court turned down the challenge as the noting being not stigmatic, the role of the High Court in ensuring that the lower judiciary was working well was also lauded.

The Court inter alia observed as under;

17. In the present case, two orders are challenged, one, which was the order of the High Court based on the basis of the resolution of the full court and the other one issued by the Government of Jammu & Kashmir on the ground that they were stigmatic orders.

18. In our considered opinion, none of the aforesaid two orders could be said to be a stigmatic order as no stigma is attached. Of course, aforesaid letters were issued in view of the resolution of the full court meeting where the full court of the High Court held that the service of the petitioner is unsatisfactory. Whether or not the probation period could be or should be extended or his service should be confirmed is required to be considered by the full court of the High Court and while doing so necessarily the service records of the petitioner are required to be considered and if from the service records it is disclosed that the service of the petitioner is not satisfactory it is open for the respondents to record such satisfaction regarding his unsatisfactory service and even mentioning the same in the order would not amount to casting any aspersion on the petitioner nor it could be said that stating in the order that his service is unsatisfactory amounts to a stigmatic order.

19.This position is no longer res integra and it is well settled that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In Pavanendra Narayan Verma v. Sanjay Gandhi PGI Of Medical Sciences reported in (2002) 1 SCC 520, this Court has explained at length the tests that would apply to determine if an order terminating the services of a probationer is stigmatic. On the facts of that case it was held that the opinion expressed in the termination order that the probationer’s “work and conduct has not been found satisfactory” was not ex facie stigmatic and in such circumstances the question of having to comply with the principles of natural justice do not arise. In this case court had the occasion to determine as to whether the impugned order therein was a letter of termination of services simpliciter or stigmatic termination. After considering various earlier decisions of this Court in para 21 of the aforesaid decision it was stated by this Court thus: (SCC p. 528)

“21. One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if anyone of the three factors is missing, the termination has been upheld.” 

In para 29 of the judgment, it further held thus: (SCC, p.529)

“29. Before considering the facts of the case before us one further, seemingly intractable, area relating to the first test needs to be cleared viz. what language in a termination order would amount to a stigma? Generally speaking when a probationer’s appointment is terminated it means that the probationer is unfit for the job, whether by reason of misconduct or ineptitude, whatever the language used in the termination order may be. Although strictly speaking, the stigma is implicit in the termination, a simple termination is not stigmatic. A termination order which explicitly states what is implicit in every order of termination of a probationer’s appointment, is also not stigmatic. The decisions cited by the parties and noted by us earlier, also do not hold so. In order to amount to a stigma, the order must be in a language which imputes something over and above mere unsuitability for the job.”

20. In the case of Krishnadevaraya Education Trust v. L.A. Balakrishna reported in (2001) 9 SCC 319, the services of respondent-Assistant Professor were terminated on the ground that his on the job proficiency was not upto the mark. This Court held that merely a mention in the order by the employer that the services of the employee are not found to be satisfactory would not tantamount to the order being a stigmatic one. This Court held in para 5 thus: -

“5. There can be no manner of doubt that the employer is entitled to engage the services of a person on probation. During the period of probation, the suitability of the recruit/appointee has to be seen. If his services are not satisfactory which means that he is not suitable for the job, then the employer has a right to terminate the services as a reason thereof. If the termination during probationary period is without any reason, perhaps such an order would be sought to be challenged on the ground of being arbitrary. Therefore, normally services of an employee on probation would be terminated, when he is found not to be suitable for the job for which he was engaged, without assigning any reason. If the order on the face of it states that his services are being terminated because his performance is not satisfactory, the employer runs the risk of the allegation being made that the order itself casts a stigma. We do not say that such a contention will succeed. Normally, therefore, it is preferred that the order itself does not mention the reason why the services are being terminated.”

6. If such an order is challenged, the employer will have to indicate the grounds on which the services of a probationer were terminated. Mere fact that in response to the challenge the employer states that the services were not satisfactory would not ipso facto mean that the services of the probationer were being terminated by way of punishment. The probationer is on test and if the services are found not to be satisfactory, the employer has, in terms of the letter of appointment, the right to terminate the services.”

21. In the case of Chaitanya Prakash v. H. Omkarappa reported in (2010) 2 SCC 623, the services of respondent were terminated by the appellant company. During the period of probation, his services were not found to be satisfactory and he was also given letters for improvement of his services and his period of service was also extended and ultimately company terminated him. Court after referring to a series of cases held that the impugned order of termination of respondent is not stigmatic.

22. In the case of State of Punjab v. Bhagwan Singh reported in (2002) 9 SCC 636 this Court at paragraphs 4 & 5 held as follows: -

“4. ……………………….. In our view, when a probationer is discharged during the period of probation and if for the purpose of discharge, a particular assessment of his work is to be made, and the authorities referred to such an assessment of his work, while passing the order of discharge, that cannot be held to amount to stigma.

5. The other sentence in the impugned order is, that the performance of the officer on the whole was “not satisfactory”. Even that does not amount to any stigma.”

23. In the present case, the order of termination 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 satisfaction even if recorded that his service is unsatisfactory would not make the order stigmatic or punitive as sought to be submitted by the petitioner. On the basis of the aforesaid resolution, the matter was referred to the State Government for issuing necessary orders.

24. One of the issues that were raised by the petitioner was that he was granted two increments during the period of two and a half years of his service. Therefore the stand taken by the respondents that his service was unsatisfactory is belied according to the petitioner because of the aforesaid action even on the part of the respondents impliedly accepting the position that his service was satisfactory.

25. The aforesaid submission of the petitioner is devoid of any merit in view of the fact that since the petitioner was continuing in service, therefore, the case for granting increment was required to be considered which was so granted. The mere granting of yearly increments would not in any manner indicate that after completion of the probation period the full court of the High Court was not competent to scrutinize his records and on the basis thereof take a decision as to whether or  not his service should be confirmed or dispensed with or whether his probation period should be extended. The High Court has a solemn duty to consider and appreciate the service of a judicial officer before confirming him in service. The district judiciary is the bedrock of our judicial system and is positioned at the primary level of entry to the doors of justice. In providing the opportunity of access to justice to the people of the country, the judicial officers who are entrusted with the task of adjudication must officiate in a manner that is becoming of their position and responsibility towards society.

26. Upright and honest judicial officers are needed not only to bolster the image of the judiciary in the eyes of litigants, but also to sustain the culture of integrity, virtue and ethics among judges. The public’s perception of the judiciary matters just as much as its role in dispute resolution. The credibility of the entire judiciary is often undermined by isolated acts of transgression by a few members of the Bench, and therefore it is imperative to maintain a high benchmark of honesty, accountability and good conduct.

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