Full Judgment Text
-1-
2009:BHC-AS:3488-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14 OF 2007
Mohan Dagadu Nimbalkar
Nageshwarwadi,
Aurangabad .. Petitioner.
Vs.
1.The State of Maharashtra
through its Secretary
Law & Judiciary Department,
Mantralaya, Bombay 400 032 ..
2.The Hon’ble the Chief Justice
High Court, Bombay .. Respondents.
Mr.Mohan Nimbalkar - Petitioner in person.
Mr.R.P.Behere A.G.P. for the State.
CORAM : S.B.MHASE & D.B.BHOSALE, JJ. CORAM : S.B.MHASE & D.B.BHOSALE, JJ. CORAM : S.B.MHASE & D.B.BHOSALE, JJ.
DATED : 20TH FEBRUARY, 2009. DATED : 20TH FEBRUARY, 2009. DATED : 20TH FEBRUARY, 2009.
ORAL JUDGMENT (PER D.B.BHOSALE, J.): ORAL JUDGMENT (PER D.B.BHOSALE, J.): ORAL JUDGMENT (PER D.B.BHOSALE, J.):
. This writ petition under Article 226 of the
Constitution of India is directed against an order
of termination dated 9th May, 1995 by which the
petitioner, who was appointed as Civil Judge, Junior
Division and Judicial Magistrate, First Class (for
short "CJJD & JMFC") on probation, has been
terminated from the date he received a copy of the
order.
2. Necessary facts giving rise to this petition
are that the petitioner was selected as CJJD & JMFC
::: Downloaded on - 01/04/2024 15:41:56 :::
-2-
vide notification dated 19th November, 1990 issued
by the Government of Maharashtra, General
Administration Department, Mantralaya (Law &
Judiciary Department), Mumbai. The first posting of
the petitioner was at Wardha where he joined on
10.1.1991 as a trainee for six months under the
District and Sessions Court, Wardha. After
completion of the training he was posted at Karanja
(Ghadge) on 30.11.1991. He continued to work there
till 31.5.1994. Thereafter he was transferred to
the District Court at Thane as the 3rd Jt. CJJD and
JMFC. The petitioner joined there on 6.6.1994 and
continued to work till 25.2.1995 and from there he
was transferred to Chandrapur vide High Court
notification dated 24.1.1995 and as 4th Jt. CJJD
and JMFC, Chandrapur. While at Chandrapur the
impugned order dated 9.5.1995 came to be issued.
3. There is no dispute that his initial
appointment vide notification dated 19.11.1990 was
on probation for a period of two years. He
completed the probation period of two years on
11.1.1993. His probation, in view of the
observations made by the committee nominated by the
Hon’ble the Chief Justice - respondent no.2 was
extended by one year vide High Court Resolution
No.A.3930(II)/90 dated 26th October, 1993. The
::: Downloaded on - 01/04/2024 15:41:56 :::
-3-
extended period of probation got over on 11.1.1994
and thereafter it appears that the probation period
stood extended in view of the deeming provision
under clause (iv) of sub-rule (4) of Rule (4) of the
Bombay Judicial Services Recruitment Rules, 1956
(for short "the said Rules") till his termination
vide order dated 9.5.1995. A copy of true
translation supplied by the petitioner of the
impugned notification dated 9.5.1995 read thus:
. "No.CJM 3295/324 (14) III General
Administration (Law and Judiciary)
Department vide Government Notification
No.CJM 1090/400 (55) D III dated 19th
November, 1990, Shri Mohan Dagadu Nimbalkar
was appointed as Civil Judge Junior Division
and Judicial Magistrate First Class in the
State of Maharashtra on probation for a
period of two years with effect from the
date he assumes charge of his post. His
probation period has been extended from 12th
January, 1993 for a year but he could not
complete the above probation period
satisfactory. Hence his services as Civil
Judge Junior Division and Judicial
Magistrate First Class stand terminated from
the date he receives copy of this order and
his probation period be deemed to have been
extended till he receives the copy of this
order.
. By order and in the name of the
Governor of Maharashtra."
4. The petitioner in the writ petition has
stated that the order of termination though on plain
reading seems to be a termination simplicitor, in
::: Downloaded on - 01/04/2024 15:41:56 :::
-4-
fact it was by way of punishment and is stigmatic.
He made reference to an incident where some
grievance was made by a lawyer at Thane against the
petitioner allegedly demanding a bribe for giving
judgment in favour of his client. It is further
contended that in pursuance thereof an enquiry was
initiated and that the petitioner was not given any
opportunity of being heard and as a result thereof
he came to be terminated in violation of Article
311(2) of the Constitution of India. In short, he
submitted that his termination is stigmatic and it
attracts Article 311(2) of the Constitution.
5. We have heard the petitioner in person. He
invited our attention to the averments in the writ
petition and its annexures so also to the reply
affidavit filed by the respondents and its annexures
to contend that his termination order was not
termination simplicitor but it was by way of
punishment and it was passed without giving him an
opportunity of being heard or allowing him to
explain his conduct and rebut the allegations
against him. He submitted that though the impugned
order appear to be a termination simpicitor it is
punitive in nature and, therefore, the respondents
were not justified in passing the said order. He
submitted that the order terminating him is also
::: Downloaded on - 01/04/2024 15:41:56 :::
-5-
violative of the principles of natural justice and
hence is void. In support of his contention he
placed reliance upon the following judgments of the
Supreme Court in Radhey Shyam Gupta V. U.P. State Radhey Shyam Gupta V. U.P. State Radhey Shyam Gupta V. U.P. State
Agro Industries Corporation Ltd. and Anr. 1999 (2) Agro Industries Corporation Ltd. and Anr. 1999 (2) Agro Industries Corporation Ltd. and Anr. 1999 (2)
SRJ 232, Yoginath D. Bagde V. State of Maharashtra SRJ 232, Yoginath D. Bagde V. State of Maharashtra SRJ 232, Yoginath D. Bagde V. State of Maharashtra
and Anr. AIR 1999 Supreme Court 3734 and Anoop and Anr. AIR 1999 Supreme Court 3734 and Anoop and Anr. AIR 1999 Supreme Court 3734 and Anoop
Jaiswal V. Government of India and Anr. AIR 1984 Jaiswal V. Government of India and Anr. AIR 1984 Jaiswal V. Government of India and Anr. AIR 1984
Supreme Court 363. Supreme Court 363. Supreme Court 363.
6. On the other hand Mr.Behere, learned A.G.P.
invited our attention to the affidavit filed by the
Additional Registrar (Legal), High Court, Appellate
Side, Bombay and submitted that the order of
termination is based upon the assessment of the
petitioner’s work and conduct during the entire
period of probation and since it was found that he
failed to complete the probation period
satisfactory, the impugned order terminating his
service was issued. He submitted that the order of
termination was issued on the basis of the
recommendations made by the committee appointed by
respondent no.2 and it was accepted by the committee
of the Administrative Judges headed by the Chief
Justice. He submitted that from bare perusal of the
impugned order and even other material on record it
is clear that the alleged complaint by the lawyer at
::: Downloaded on - 01/04/2024 15:41:56 :::
-6-
Thane against the petitioner was not a reason for
recommending termination of the petitioner. The
termination was based upon the opinion expressed by
the learned District Judges under whom the
petitioner worked. Our attention was drawn to all
the annexures to the reply affidavit in support of
the aforesaid contentions.
7. It appears that on expiry of the initial
probation period of two years the petitioner’s
performance regarding work and conduct was assessed
by the committee nominated by respondent no.2 in
October, 1993. The committee on assessment of his
overall performance made the following observations
insofar as the judicial work is concerned:
. ".... .... .... The civil
judgments may broadly be said to be in
proper form. However, there is no proper
appreciation or use of legal phraseology.
Similar is the position regarding his
criminal judgments. He requires more
efforts and attempt to write better.
Therefore, I am not commenting on his
competence at this stage.
. I, therefore, recommend that his
probationary period may be extended by one
year.
16.10.93"
. It is on the basis of these observations the
::: Downloaded on - 01/04/2024 15:41:56 :::
-7-
probation period of the petitioner was extended and
it was continued till the impugned order of
termination was passed.
8. Under the provisions of clause (iv) of
sub-rule (4) of Rule (4) of the Rules a person
appointed as CJJD and JMFC has to be on probation
for a period of two years, which may be extended by
the High Court from time to time as it may deem fit.
It is also provided therein that during the period
of probation and until expressly confirmed by
written order, the service of such person is liable
to be terminated by one month’s notice on either
side, without any reason being assigned for the same
by payment of salary for the period of notice or
unexpired portion thereof. These rules do not
contemplate holding of any enquiry for terminating
the services of a probationer Judge, who fails to
complete his probation period satisfactorily. In
such cases, the order of termination is not penal,
but it is a termination simplicitor.
9. In view of the guidelines laid down by the
High Court, any District and Sessions Judge is
required to forward his report in the prescribed
proforma about the conduct and work of the
probationer Judge. Such opinions are placed before
::: Downloaded on - 01/04/2024 15:41:56 :::
-8-
a committee of Judge/Judges of the High Court,
constituted by the Chief Justice, for assessing
overall performance of the probationer and for
considering whether he has satisfactorily completed
his probation period. The said committee, besides
examining judgments of the concerned probationer
Judge, also considers special reports of District
Judge, report from the S.I.D. about complaints, if
any, report from the Inspection Branch about
quarterly disposal of the probationer Judge during
reporting period with remarks, warning, if any, and
such other relevant material which the committee
thinks fit and proper to consider. The
recommendations of the committee are thereafter
placed before the committee of Administrative Judges
headed by the Chief Justice. They take decision
whether a certificate regarding completion of the
probationary period should be granted to the
concerned Judge or whether probation period should
be extended or whether in case of unsatisfactory
performance, his service should be terminated.
10. From the perusal of the entire record, in
the present case, we find that the aforementioned
procedure has been followed scrupulously by the
committee so also by the committee of the
Administrative Judges. The reports of two District
::: Downloaded on - 01/04/2024 15:41:56 :::
-9-
Judges dated 15.1.1994 and June, 1994, apart from
the other material regarding the petitioner, were
placed before the committee to assess the
performance of the petitioner. The opinion recorded
by the committee read thus:
." I have perused enclosed judgments
in Civil and Criminal matters.
. As regards judgments in Civil
matters, I find that the judgments are based
on totally erroneous understanding of the
T.P.Act. Specific Relief Act and the
Contract Act. The judgments are also based
on extraneous factors. As regards judgments
in Civil matters, there is no proper
appreciation of facts. The form of the
Civil judgments broadly appear to be clear
and unambiguous. The concerned judge was
given extension regarding probationary
period on the last occasion. I find that
the legal concepts have not been understood
by the Judge and there is no improvement in
any aspect. None of the parameters are
satisfied. The knowledge of Civil law
appears to be poor.
. As regards judgments in Criminal
matters, marshalling of evidence is very
poor and abrupt. There is no discussion on
evidence. The entire approach is callous.
The judgments are based only on summary of
the evidence. There is no coherence in the
thinking as reflected by the contents of the
judgment. There is no improvement despite
opportunity being given in the past when the
period of probation was extended.
. As regards service record, there
are serious complaints, but since they are
being processed, I do not wish to comment on
that aspect.
. Looking to the enclosed judgments,
I am of the view that the work is not up to
the mark. In fact, it is unsatisfactory
and, therefore, the probationary period of
Shri Nimbalkar should not be extended.
::: Downloaded on - 01/04/2024 15:41:56 :::
-10-
. In the circumstances, I am of the
view that the Certificate about satisfactory
completion of probationary period should not
be issued."
11. From bare perusal of the report of the
committee it is clear that other material such as
the complaint of the lawyer at Thane was not taken
into consideration while deciding whether the
petitioner has satisfactorily completed his
probation period. The recommendation made by the
Judgment Examination Committee were also placed
before the committee of the Administrative Judges
headed by the Chief Justice. Upon considering the
aforementioned material the committee of the
Administrative Judges seems to have accepted the
recommendations made by the committee and pursuant
thereto the impugned order came to be issued
terminating the petitioner’s service on the ground
that he has failed to complete satisfactorily his
probation period.
12. At the end of probation period the
probationer-Judge could be confirmed subject to his
fitness for confirmation. The question of fitness
can be considered only at the end of the period of
probation, and on such consideration if the
probationer is found suitable by the appointing
::: Downloaded on - 01/04/2024 15:41:56 :::
-11-
authority then the appointing authority may issue an
order of confirmation. It is well settled that an
order of confirmation is a positive act on the part
of the employer which the employer is required to
pass in accordance with the rules governing the
question of confirmation subject to a finding that
the probationer is in fact fit for confirmation. In
such a case there is no bar against termination at
any point of time after expiry of the period of
probation, more particularly when there is a
provision in the rules for initial probation and
extension thereof. It is also well settled that
even if the maximum period of probation has expired
and neither any order of confirmation has been
passed, he cannot be deemed to have been confirmed
merely because the said period has expired. Thus,
if the probationer while continuing on probation has
been considered and found not suitable for
confirmation by the appointing authority, it is open
to the appointing authority to terminate his
services without affording him an opportunity of
being heard.
. Merely because some enquiry of the alleged
misconduct was pending during the probation period,
it cannot be treated as stigma more particularly
when an order of termination, in such a case, was
::: Downloaded on - 01/04/2024 15:41:56 :::
-12-
issued on the ground that the probationer failed to
complete his probation period satisfactorily and if
his termination was not based upon such enquiry or
its outcome against the probationer. Similarly, if
there is no material on record to connect the
enquiry with the order of termination or if the
termination is not based on such enquiry, such
termination cannot be treated as stigmatic and in
that case an opportunity of being heard need not be
provided before issuance of the order of
termination. In other words, if termination is
based upon an assessment of the probationer’s work
and conduct during the entire period of probation
and if he fails to complete the probation period
satisfactorily, it is not necessary to give any
opportunity of being heard to the probationer Judge.
13. In the present case we find that the order
of termination has absolutely no connection with the
alleged complaint of the lawyer from Thane and the
enquiry initiated in pursuance thereof or with the
agitation by the lawyers in the form of abstention
against the petitioner. The petitioner’s period of
probation was continued till the impugned order of
termination was issued. There is no dispute that
the petitioner was simply a probationer and he had
no right on the post. It was not necessary to
::: Downloaded on - 01/04/2024 15:41:56 :::
-13-
afford him an opportunity of being heard when it is
clear from the record that the order of termination
was issued on the basis of the other material
available during the period of probation.
. The decision to terminate his service for
non satisfactory completion of probation period is
legally taken by the competent authority and it is
not open to the petitioner to challenge it on the
ground that it is stigmatic and attracts the
provisions of Article 311(2) of the Constitution
and, therefore, an opportunity of being heard ought
to have been given before his termination. The
respondents in their reply affidavit have clearly
stated that termination of the petitioner by the
order under challenge has no relevance either with
the complaint of the lawyer at Thane or the enquiry
conducted in pursuance thereof. In any case a
complaint by the lawyer at Thane was not the reason
for termination of the service of the petitioner
although the said incident was mentioned in the
report of the District Judge, Thane about the
conduct of the petitioner. The judgments relied
upon by the petitioner are of no avail to the
petitioner in view of the fact that all the
judgments are in the cases of permanent employees
and not the probationers. The impugned order of
::: Downloaded on - 01/04/2024 15:41:56 :::
-14-
termination is undoubtedly not based upon any
material which would cast stigma on the petitioner.
In the circumstances the writ petition fails. Rule
is discharged. No costs.
(D.B.BHOSALE,J.) (S.B.MHASE, J.) (D.B.BHOSALE,J.) (S.B.MHASE, J.) (D.B.BHOSALE,J.) (S.B.MHASE, J.)
::: Downloaded on - 01/04/2024 15:41:56 :::
-15-
IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
APPELLATE SIDE APPELLATE SIDE
WRIT PETITION NO.14 OF 2007
Date of Decision: 20th February, 2009.
For approval and signature:
The Hon’ble Mr.Justice : S.B.MHASE The Hon’ble Mr.Justice : S.B.MHASE The Hon’ble Mr.Justice : S.B.MHASE
And And And
The Hon’ble Mr.Justice : D.B. BHOSALE The Hon’ble Mr.Justice : D.B. BHOSALE The Hon’ble Mr.Justice : D.B. BHOSALE
1. Whether Reporters of Local papers may
be allowed to see the judgement ?
2. To be referred to the Reporter or
not?
3. Whether Their Lordships wish to see
the fair copy of the judgement?
4. Whether this case involves a
substantial question of law as to the
interpretation of the Constitution of
India, 1950, or any Order made
thereunder?
5. Whether it is to be circulated to the
Civil Judges?
6. Whether the case involves an
important question of law and whether a
copy of the judgment should be sent to
Nagpur, Aurangabad & Goa Offices?
::: Downloaded on - 01/04/2024 15:41:56 :::
2009:BHC-AS:3488-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.14 OF 2007
Mohan Dagadu Nimbalkar
Nageshwarwadi,
Aurangabad .. Petitioner.
Vs.
1.The State of Maharashtra
through its Secretary
Law & Judiciary Department,
Mantralaya, Bombay 400 032 ..
2.The Hon’ble the Chief Justice
High Court, Bombay .. Respondents.
Mr.Mohan Nimbalkar - Petitioner in person.
Mr.R.P.Behere A.G.P. for the State.
CORAM : S.B.MHASE & D.B.BHOSALE, JJ. CORAM : S.B.MHASE & D.B.BHOSALE, JJ. CORAM : S.B.MHASE & D.B.BHOSALE, JJ.
DATED : 20TH FEBRUARY, 2009. DATED : 20TH FEBRUARY, 2009. DATED : 20TH FEBRUARY, 2009.
ORAL JUDGMENT (PER D.B.BHOSALE, J.): ORAL JUDGMENT (PER D.B.BHOSALE, J.): ORAL JUDGMENT (PER D.B.BHOSALE, J.):
. This writ petition under Article 226 of the
Constitution of India is directed against an order
of termination dated 9th May, 1995 by which the
petitioner, who was appointed as Civil Judge, Junior
Division and Judicial Magistrate, First Class (for
short "CJJD & JMFC") on probation, has been
terminated from the date he received a copy of the
order.
2. Necessary facts giving rise to this petition
are that the petitioner was selected as CJJD & JMFC
::: Downloaded on - 01/04/2024 15:41:56 :::
-2-
vide notification dated 19th November, 1990 issued
by the Government of Maharashtra, General
Administration Department, Mantralaya (Law &
Judiciary Department), Mumbai. The first posting of
the petitioner was at Wardha where he joined on
10.1.1991 as a trainee for six months under the
District and Sessions Court, Wardha. After
completion of the training he was posted at Karanja
(Ghadge) on 30.11.1991. He continued to work there
till 31.5.1994. Thereafter he was transferred to
the District Court at Thane as the 3rd Jt. CJJD and
JMFC. The petitioner joined there on 6.6.1994 and
continued to work till 25.2.1995 and from there he
was transferred to Chandrapur vide High Court
notification dated 24.1.1995 and as 4th Jt. CJJD
and JMFC, Chandrapur. While at Chandrapur the
impugned order dated 9.5.1995 came to be issued.
3. There is no dispute that his initial
appointment vide notification dated 19.11.1990 was
on probation for a period of two years. He
completed the probation period of two years on
11.1.1993. His probation, in view of the
observations made by the committee nominated by the
Hon’ble the Chief Justice - respondent no.2 was
extended by one year vide High Court Resolution
No.A.3930(II)/90 dated 26th October, 1993. The
::: Downloaded on - 01/04/2024 15:41:56 :::
-3-
extended period of probation got over on 11.1.1994
and thereafter it appears that the probation period
stood extended in view of the deeming provision
under clause (iv) of sub-rule (4) of Rule (4) of the
Bombay Judicial Services Recruitment Rules, 1956
(for short "the said Rules") till his termination
vide order dated 9.5.1995. A copy of true
translation supplied by the petitioner of the
impugned notification dated 9.5.1995 read thus:
. "No.CJM 3295/324 (14) III General
Administration (Law and Judiciary)
Department vide Government Notification
No.CJM 1090/400 (55) D III dated 19th
November, 1990, Shri Mohan Dagadu Nimbalkar
was appointed as Civil Judge Junior Division
and Judicial Magistrate First Class in the
State of Maharashtra on probation for a
period of two years with effect from the
date he assumes charge of his post. His
probation period has been extended from 12th
January, 1993 for a year but he could not
complete the above probation period
satisfactory. Hence his services as Civil
Judge Junior Division and Judicial
Magistrate First Class stand terminated from
the date he receives copy of this order and
his probation period be deemed to have been
extended till he receives the copy of this
order.
. By order and in the name of the
Governor of Maharashtra."
4. The petitioner in the writ petition has
stated that the order of termination though on plain
reading seems to be a termination simplicitor, in
::: Downloaded on - 01/04/2024 15:41:56 :::
-4-
fact it was by way of punishment and is stigmatic.
He made reference to an incident where some
grievance was made by a lawyer at Thane against the
petitioner allegedly demanding a bribe for giving
judgment in favour of his client. It is further
contended that in pursuance thereof an enquiry was
initiated and that the petitioner was not given any
opportunity of being heard and as a result thereof
he came to be terminated in violation of Article
311(2) of the Constitution of India. In short, he
submitted that his termination is stigmatic and it
attracts Article 311(2) of the Constitution.
5. We have heard the petitioner in person. He
invited our attention to the averments in the writ
petition and its annexures so also to the reply
affidavit filed by the respondents and its annexures
to contend that his termination order was not
termination simplicitor but it was by way of
punishment and it was passed without giving him an
opportunity of being heard or allowing him to
explain his conduct and rebut the allegations
against him. He submitted that though the impugned
order appear to be a termination simpicitor it is
punitive in nature and, therefore, the respondents
were not justified in passing the said order. He
submitted that the order terminating him is also
::: Downloaded on - 01/04/2024 15:41:56 :::
-5-
violative of the principles of natural justice and
hence is void. In support of his contention he
placed reliance upon the following judgments of the
Supreme Court in Radhey Shyam Gupta V. U.P. State Radhey Shyam Gupta V. U.P. State Radhey Shyam Gupta V. U.P. State
Agro Industries Corporation Ltd. and Anr. 1999 (2) Agro Industries Corporation Ltd. and Anr. 1999 (2) Agro Industries Corporation Ltd. and Anr. 1999 (2)
SRJ 232, Yoginath D. Bagde V. State of Maharashtra SRJ 232, Yoginath D. Bagde V. State of Maharashtra SRJ 232, Yoginath D. Bagde V. State of Maharashtra
and Anr. AIR 1999 Supreme Court 3734 and Anoop and Anr. AIR 1999 Supreme Court 3734 and Anoop and Anr. AIR 1999 Supreme Court 3734 and Anoop
Jaiswal V. Government of India and Anr. AIR 1984 Jaiswal V. Government of India and Anr. AIR 1984 Jaiswal V. Government of India and Anr. AIR 1984
Supreme Court 363. Supreme Court 363. Supreme Court 363.
6. On the other hand Mr.Behere, learned A.G.P.
invited our attention to the affidavit filed by the
Additional Registrar (Legal), High Court, Appellate
Side, Bombay and submitted that the order of
termination is based upon the assessment of the
petitioner’s work and conduct during the entire
period of probation and since it was found that he
failed to complete the probation period
satisfactory, the impugned order terminating his
service was issued. He submitted that the order of
termination was issued on the basis of the
recommendations made by the committee appointed by
respondent no.2 and it was accepted by the committee
of the Administrative Judges headed by the Chief
Justice. He submitted that from bare perusal of the
impugned order and even other material on record it
is clear that the alleged complaint by the lawyer at
::: Downloaded on - 01/04/2024 15:41:56 :::
-6-
Thane against the petitioner was not a reason for
recommending termination of the petitioner. The
termination was based upon the opinion expressed by
the learned District Judges under whom the
petitioner worked. Our attention was drawn to all
the annexures to the reply affidavit in support of
the aforesaid contentions.
7. It appears that on expiry of the initial
probation period of two years the petitioner’s
performance regarding work and conduct was assessed
by the committee nominated by respondent no.2 in
October, 1993. The committee on assessment of his
overall performance made the following observations
insofar as the judicial work is concerned:
. ".... .... .... The civil
judgments may broadly be said to be in
proper form. However, there is no proper
appreciation or use of legal phraseology.
Similar is the position regarding his
criminal judgments. He requires more
efforts and attempt to write better.
Therefore, I am not commenting on his
competence at this stage.
. I, therefore, recommend that his
probationary period may be extended by one
year.
16.10.93"
. It is on the basis of these observations the
::: Downloaded on - 01/04/2024 15:41:56 :::
-7-
probation period of the petitioner was extended and
it was continued till the impugned order of
termination was passed.
8. Under the provisions of clause (iv) of
sub-rule (4) of Rule (4) of the Rules a person
appointed as CJJD and JMFC has to be on probation
for a period of two years, which may be extended by
the High Court from time to time as it may deem fit.
It is also provided therein that during the period
of probation and until expressly confirmed by
written order, the service of such person is liable
to be terminated by one month’s notice on either
side, without any reason being assigned for the same
by payment of salary for the period of notice or
unexpired portion thereof. These rules do not
contemplate holding of any enquiry for terminating
the services of a probationer Judge, who fails to
complete his probation period satisfactorily. In
such cases, the order of termination is not penal,
but it is a termination simplicitor.
9. In view of the guidelines laid down by the
High Court, any District and Sessions Judge is
required to forward his report in the prescribed
proforma about the conduct and work of the
probationer Judge. Such opinions are placed before
::: Downloaded on - 01/04/2024 15:41:56 :::
-8-
a committee of Judge/Judges of the High Court,
constituted by the Chief Justice, for assessing
overall performance of the probationer and for
considering whether he has satisfactorily completed
his probation period. The said committee, besides
examining judgments of the concerned probationer
Judge, also considers special reports of District
Judge, report from the S.I.D. about complaints, if
any, report from the Inspection Branch about
quarterly disposal of the probationer Judge during
reporting period with remarks, warning, if any, and
such other relevant material which the committee
thinks fit and proper to consider. The
recommendations of the committee are thereafter
placed before the committee of Administrative Judges
headed by the Chief Justice. They take decision
whether a certificate regarding completion of the
probationary period should be granted to the
concerned Judge or whether probation period should
be extended or whether in case of unsatisfactory
performance, his service should be terminated.
10. From the perusal of the entire record, in
the present case, we find that the aforementioned
procedure has been followed scrupulously by the
committee so also by the committee of the
Administrative Judges. The reports of two District
::: Downloaded on - 01/04/2024 15:41:56 :::
-9-
Judges dated 15.1.1994 and June, 1994, apart from
the other material regarding the petitioner, were
placed before the committee to assess the
performance of the petitioner. The opinion recorded
by the committee read thus:
." I have perused enclosed judgments
in Civil and Criminal matters.
. As regards judgments in Civil
matters, I find that the judgments are based
on totally erroneous understanding of the
T.P.Act. Specific Relief Act and the
Contract Act. The judgments are also based
on extraneous factors. As regards judgments
in Civil matters, there is no proper
appreciation of facts. The form of the
Civil judgments broadly appear to be clear
and unambiguous. The concerned judge was
given extension regarding probationary
period on the last occasion. I find that
the legal concepts have not been understood
by the Judge and there is no improvement in
any aspect. None of the parameters are
satisfied. The knowledge of Civil law
appears to be poor.
. As regards judgments in Criminal
matters, marshalling of evidence is very
poor and abrupt. There is no discussion on
evidence. The entire approach is callous.
The judgments are based only on summary of
the evidence. There is no coherence in the
thinking as reflected by the contents of the
judgment. There is no improvement despite
opportunity being given in the past when the
period of probation was extended.
. As regards service record, there
are serious complaints, but since they are
being processed, I do not wish to comment on
that aspect.
. Looking to the enclosed judgments,
I am of the view that the work is not up to
the mark. In fact, it is unsatisfactory
and, therefore, the probationary period of
Shri Nimbalkar should not be extended.
::: Downloaded on - 01/04/2024 15:41:56 :::
-10-
. In the circumstances, I am of the
view that the Certificate about satisfactory
completion of probationary period should not
be issued."
11. From bare perusal of the report of the
committee it is clear that other material such as
the complaint of the lawyer at Thane was not taken
into consideration while deciding whether the
petitioner has satisfactorily completed his
probation period. The recommendation made by the
Judgment Examination Committee were also placed
before the committee of the Administrative Judges
headed by the Chief Justice. Upon considering the
aforementioned material the committee of the
Administrative Judges seems to have accepted the
recommendations made by the committee and pursuant
thereto the impugned order came to be issued
terminating the petitioner’s service on the ground
that he has failed to complete satisfactorily his
probation period.
12. At the end of probation period the
probationer-Judge could be confirmed subject to his
fitness for confirmation. The question of fitness
can be considered only at the end of the period of
probation, and on such consideration if the
probationer is found suitable by the appointing
::: Downloaded on - 01/04/2024 15:41:56 :::
-11-
authority then the appointing authority may issue an
order of confirmation. It is well settled that an
order of confirmation is a positive act on the part
of the employer which the employer is required to
pass in accordance with the rules governing the
question of confirmation subject to a finding that
the probationer is in fact fit for confirmation. In
such a case there is no bar against termination at
any point of time after expiry of the period of
probation, more particularly when there is a
provision in the rules for initial probation and
extension thereof. It is also well settled that
even if the maximum period of probation has expired
and neither any order of confirmation has been
passed, he cannot be deemed to have been confirmed
merely because the said period has expired. Thus,
if the probationer while continuing on probation has
been considered and found not suitable for
confirmation by the appointing authority, it is open
to the appointing authority to terminate his
services without affording him an opportunity of
being heard.
. Merely because some enquiry of the alleged
misconduct was pending during the probation period,
it cannot be treated as stigma more particularly
when an order of termination, in such a case, was
::: Downloaded on - 01/04/2024 15:41:56 :::
-12-
issued on the ground that the probationer failed to
complete his probation period satisfactorily and if
his termination was not based upon such enquiry or
its outcome against the probationer. Similarly, if
there is no material on record to connect the
enquiry with the order of termination or if the
termination is not based on such enquiry, such
termination cannot be treated as stigmatic and in
that case an opportunity of being heard need not be
provided before issuance of the order of
termination. In other words, if termination is
based upon an assessment of the probationer’s work
and conduct during the entire period of probation
and if he fails to complete the probation period
satisfactorily, it is not necessary to give any
opportunity of being heard to the probationer Judge.
13. In the present case we find that the order
of termination has absolutely no connection with the
alleged complaint of the lawyer from Thane and the
enquiry initiated in pursuance thereof or with the
agitation by the lawyers in the form of abstention
against the petitioner. The petitioner’s period of
probation was continued till the impugned order of
termination was issued. There is no dispute that
the petitioner was simply a probationer and he had
no right on the post. It was not necessary to
::: Downloaded on - 01/04/2024 15:41:56 :::
-13-
afford him an opportunity of being heard when it is
clear from the record that the order of termination
was issued on the basis of the other material
available during the period of probation.
. The decision to terminate his service for
non satisfactory completion of probation period is
legally taken by the competent authority and it is
not open to the petitioner to challenge it on the
ground that it is stigmatic and attracts the
provisions of Article 311(2) of the Constitution
and, therefore, an opportunity of being heard ought
to have been given before his termination. The
respondents in their reply affidavit have clearly
stated that termination of the petitioner by the
order under challenge has no relevance either with
the complaint of the lawyer at Thane or the enquiry
conducted in pursuance thereof. In any case a
complaint by the lawyer at Thane was not the reason
for termination of the service of the petitioner
although the said incident was mentioned in the
report of the District Judge, Thane about the
conduct of the petitioner. The judgments relied
upon by the petitioner are of no avail to the
petitioner in view of the fact that all the
judgments are in the cases of permanent employees
and not the probationers. The impugned order of
::: Downloaded on - 01/04/2024 15:41:56 :::
-14-
termination is undoubtedly not based upon any
material which would cast stigma on the petitioner.
In the circumstances the writ petition fails. Rule
is discharged. No costs.
(D.B.BHOSALE,J.) (S.B.MHASE, J.) (D.B.BHOSALE,J.) (S.B.MHASE, J.) (D.B.BHOSALE,J.) (S.B.MHASE, J.)
::: Downloaded on - 01/04/2024 15:41:56 :::
-15-
IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
APPELLATE SIDE APPELLATE SIDE
WRIT PETITION NO.14 OF 2007
Date of Decision: 20th February, 2009.
For approval and signature:
The Hon’ble Mr.Justice : S.B.MHASE The Hon’ble Mr.Justice : S.B.MHASE The Hon’ble Mr.Justice : S.B.MHASE
And And And
The Hon’ble Mr.Justice : D.B. BHOSALE The Hon’ble Mr.Justice : D.B. BHOSALE The Hon’ble Mr.Justice : D.B. BHOSALE
1. Whether Reporters of Local papers may
be allowed to see the judgement ?
2. To be referred to the Reporter or
not?
3. Whether Their Lordships wish to see
the fair copy of the judgement?
4. Whether this case involves a
substantial question of law as to the
interpretation of the Constitution of
India, 1950, or any Order made
thereunder?
5. Whether it is to be circulated to the
Civil Judges?
6. Whether the case involves an
important question of law and whether a
copy of the judgment should be sent to
Nagpur, Aurangabad & Goa Offices?
::: Downloaded on - 01/04/2024 15:41:56 :::