K.B. KRISHNAMURTHY, SON OF LATE SRI BYRAIAH Vs. THE STATE OF KARNATAKA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LAW DEPARTMENT, VIDHANA SOUDHA, BANGALORE - 560001 AND THE HONBLE HIGH COURT OF KARNATAKA REPRESENTED BY THE REGISTRAR GENERAL. H

JUDGEMENT

(1.) THE facts are as follows:

(2.) IT is pointed out that alongwith the petitioner, 56 persons were appointed as Civil Judges during the year 1998, four of whom had been discharged during the year 2003. The High Court, which monitors and supervises the work of Judicial Officers, having discharged the Judicial Officers appointed along with the petitioner, whose work was not satisfactory, the fact that the petitioner continued in service even after discharge of those officers, would be an indication that the petitioners performance was not found wanting in any respect. But after expiry of more than six years, the petitioner being taken unawares by the order of discharge is therefore wholly inexplicable and is patently illegal. The only clue, which in itself is again not sufficient to warrant the discharge of the petitioner, is a communication from the Registrar General of the High Court communicating certain remarks in his Confidential Records for the period 1.1.2002 to 5.8.2002, as per letter dated 29.3.2004. The remarks were communicated to the petitioner after a lapse of more than eighteen months and was just prior to discharging him from service. The only remark that has been made against the petitioner was that there was scope for improvement. This, by itself, could not be considered as an adverse remark and it was wholly advisable and therefore it is contended that there is no explanation at all for the petitioner's discharge from service as having been found unsuitable, in the absence of any material to indicate that his services were, at all points of time, well appreciated and it is on record that it was more than satisfactory. One other incident which the petitioner is able to recall had occurred during his tenure at Malavalli in the year 2001. It is stated that a new building had been constructed for the court during March 2001. This was away from the town. There were no facilities like Canteen, Toilets and drinking water. There was demand by everyone, including the court staff that a Canteen and other facilities be provided. There was however, no separate building for a Canteen. This was brought to the attention of the District Judge. The District Judge, who was on a visit to the court building, orally directed the petitioner to take steps to provide a Canteen. The petitioner accordingly had invited tenders and awarded the contract of running a Canteen to one Venkatesh on payment of a licence fee of Rs. 200/ - per month to the Government for a period of eleven months. An agreement was executed and as there was no permanent structure, the contractor himself had put up a temporary structure measuring 10' * 10, by arising two walls near the compound wall and providing a roof with zinc sheets. This agreement with the Canteen Contractor was with a clause that he would immediately vacate the premises if there was any objection for whatsoever reason from any source. It transpires that after the Canteen had functioned for about eight months, there were anonymous letters addressed to the High Court by certain individuals making allegations against the petitioner. This had prompted the District Judge to inspect the premises, including the Canteen, in respect of which, pointed inquiries were made though the petitioner was not questioned and it is learnt by the petitioner that a report had been submitted to the High Court and thereafter the petitioner was telephonically informed to shut down the Canteen, which was immediately implemented and the proprietor vacated the premises. Thereafter, the petitioner had received a communication from the High Court informing him that he was permitted to provide facilities for running a Canteen on a temporary basis. Accordingly, the petitioner had invited for fresh tenders and a contract was awarded to yet another. This appears to have infuriated the earlier contractor, who is said to have made anonymous complaints to the higher authorities. This had prompted yet another inquiry by the Registrar (Vigilance) of the High Court. Though the petitioner was not questioned at all, he was summarily transferred to Mundargi. There he received the order of discharge. It is therefore the petitioner's belief that acting on the allegations made against him, there has been an inquiry conducted behind his back and findings have been arrived at, which is the foundation for the petitioner's discharge from service. It is therefore contended that the law is well settled that if the findings on allegations arrived at behind the back of a person, such as the petitioner and if that formed the foundation for an order of discharge simpliciter, it if can only be construed as an order of termination by way of punishment.

(3.) THE learned Government Pleader, on the other hand, has filed Statement of Objections to assert that the discharge of the petitioner is a discharge simpliciter on the face of it and does not cast any stigma on the petitioner. As no punishment was imposed, the question of any regular inquiry under the provisions of the Karnataka Civil Services (Classification, Control and Appeal) Rules. 1957 (hereinafter referred to as the CCA Rules' for brevity) was unnecessary. In this regard, reliance is placed on a judgment of the apex Court in H.G. Sangati vs. Registrar General, High Court of Karnataka, AIR 2001 SC 1148, and the following Passage from the said judgment is extracted hereunder: It is well settled by a series of decisions of this Hon'ble Court including the Constitution Bench decision in Parshotam Lal Dhingra Vs. Union of India (UOI), AIR 1958 SC 36 and Seven Judge Bench decision in Ishwar Chand Agarwal Vs. State of Punjab, AIR 1974 SC 2192 that services of an appointee to a permanent post or probation can be terminated or dispensed with during or at the end of a period of probation because the appointee to a permanent post or probation can be terminated or dispensed with during or at the end of the period of probation because the appointee does not acquire any right to hold or continue to hold such a post during the period of probation. In Samsher Singh case, it was observed that the period of probation is intended to assess the work of the probationer whether it is satisfactory and whether the appointee is suitable for the post, the competent authority may come to the conclusion that the probationer is unsuitable for the job and hence must be discharged on account of inadequacy for the job or for any temperamental or other similar grounds not involving moral turpitude. No punishment is involved in such a situation. Recently, in Dipti Prakash Banerjee Vs. Satyendra Nath Bose National Center for Basic Services AIR 1999 SCW 605, AIR 1990 SC 983 having reviewed the entire available case law on the issue, this court has held that termination of a probationer's services, if held that termination of a probationer's services, if motivated by certain allegations tantamounting of misconduct but not forming foundation of a simple order of termination cannot be termed punitive and hence, would be valid. In Satya Narayan Athya Vs. High Court of M.P. and another, (1996) 1 AD SC 387 , the petitioner appointed on probation as a Civil Judge and not confirmed, was discharged from service in view of the non -satisfactory nature of his service. This court held that the High Court was justified in discharging the Petitioner from service during the period of probation and it was not necessary that there should have been a charge and an inquiry on his conduct since the petitioner was only on probation and it was opened to the High Court to consider whether he was suitable for confirmation or should be discharged from service.