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2022 Supreme(Chh) 229
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Ganesh Ram Berman, S/o Late Rajuram Berman - Appellant
Vs.
High Court of Chhattisgarh, through Registrar General, High Court, Bodri, Bilaspur (C.G.) - Respondent
Writ Petition (S) No.825 of 2017
Decided On : 13-05-2022
Advocate Appeared:
For the Appellant :Mr. B.N. Mishra, Advocate.
For the Respondent:Mr. Prafull N. Bharat, Senior Advocate with Mr. Shashank Thakur, Advocate, Mr. Ravi Kumar Bhagat, Deputy Govt. Advocate.
Headnote:
Constitution of India,1950 - Articles 235, 311, 233, 235 read with Rule 9(4) and 311(2) - High Court of Chhattisgarh Rules, 2007 - Rule 4-C under Chapter I-A and Rule 9(4) - Impugned order of termination - Terminated the services - Termination is stigmatic and punitive - Allegations against him and two other judicial officers - Petitioner was directed to submit his explanation on anonymous complaint and on inspection report of Registrar Annexure P-4, but he was not informed anything further and he was served with order of termination of sub-rule (4) of Rule 9 of HJS Rules - Case of petitioner that order of termination is stigmatic / punitive in nature, once order of termination is stigmatic and punitive, it must have been followed by a full-fledged departmental enquiry which has not been done - Petitioner that inspection report of the Registrar along with explanation of petitioner was submitted to the Standing Committee and Standing Committee in its meeting a decision and resolved to recommend termination of services of petitioner under sub-rule (4) of Rule 9 of the HJS Rules - Standing Committee was not empowered to recommend termination of the petitioner’s services to State Government and it was only the Full Court of the High Court which was authorised to recommend for termination of services of petitioner in view of provisions contained in Article 235 of Constitution of India - Held, Court has already held herein-above while answering question No.1 that order of termination passed by respondent State Government is ipso facto unconstitutional, non est and without authority of law, the question as to whether the impugned order terminating the services of petitioner is punitive or stigmatic in nature, in my considered opinion need not be gone into as the impugned order was passed on the basis of recommendation made by incompetent authority - term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in process of creation of subject-instrument. It goes beyond a remediable irregularity - That is how Coordinate Bench has construed the impact of not having approval of Disciplinary Authority in issuing the charge memorandum - Event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid - impugned order of termination has already been held to be unconstitutional, and without authority of law, this question though placed for consideration, is not being gone into as held hereinabove and question No.2 is answered accordingly - Respondent No.1 to proceed in accordance with law - Petitioner is directed to be reinstated in service forthwith along with all consequential service benefits except back-wages - petitioner may make representation to competent authority within 30 days from today claiming back-wages which shall be considered by competent authority within next 60 days in accordance with law keeping in view relevant rules and regulations - Writ petition is allowed to the extent.
ORDER :
1. This petition is directed against the order dated 6-2-2017 (Annexure P-5) by which the State of Chhattisgarh exercising the power under sub-rule (4) of Rule 9 of the Chhattisgarh Higher Judicial Service (Recruitment and Conditions of Service) Rules, 2006 (for short, ‘the HJS Rules’) and on the recommendation of the High Court of Chhattisgarh, terminated the services of the petitioner with immediate effect.
2. The petitioner was appointed as District Judge (Entry Level) by order dated 30-10-2014 (Annexure P-2) and he was posted as Additional District Judge, Raipur. It is the case of the petitioner that during the continuance of the period of probation, he was served with a memo dated 26-8-2016 by the Registrar (Vigilance) along with memo dated 31-8-2016 issued by the District & Sessions Judge, Raipur with a copy of anonymous complaint making certain allegations against him and two other judicial officers. The petitioner was directed to submit his explanation on the anonymous complaint and on the inspection report of the Registrar (Vigilance) which he submitted on 24-9-2016 vide Annexure P-4, but he was not informed anything further and he was served with the order of termination dated 6-2-2017 in terms of sub-rule (4) of Rule 9 of the HJS Rules. It is the further case of the petitioner that the order of termination is stigmatic / punitive in nature, once the order of termination is stigmatic and punitive, it must have been followed by a full-fledged departmental enquiry which has not been done, as such, the impugned order of termination is liable to be quashed. It is also the case of the petitioner that the inspection report of the Registrar (Vigilance) along with the explanation of the petitioner was submitted to the Standing Committee and the Standing Committee in its meeting dated 24-1-2017 took a decision and resolved to recommend the termination of services of the petitioner under sub-rule (4) of Rule 9 of the HJS Rules. The Standing Committee was not empowered to recommend the termination of the petitioner’s services to the State Government and it was only the Full Court of the High Court which was authorised to recommend for termination of the services of the petitioner in view of the provisions contained in Article 235 of the Constitution of India. It is also the case of the petitioner that the Full Court has never authorised the Standing Committee as contained in terms of Rule 4-C under Chapter I-A of the High Court of Chhattisgarh Rules, 2007 (for short, ‘the Rules of 2007’) read with Rule 9(4) of the HJS Rules to recommend the termination of a probationer. As such, the termination of the petitioner is liable to be quashed on the aforesaid two grounds.
3. Return has been filed by respondent No.1/High Court stating inter alia that the order of termination of the petitioner, who is a probationer, is strictly in accordance with Rule 9(4) of the HJS Rules. It has been pleaded that an anonymous complaint dated 3-12-2015 and another complaint dated 18-1-2016 was made by Shri J.P. Agrawal, Civil Court, Raipur, which were placed before the Portfolio Judge for consideration and pursuant to the order of the then Portfolio Judge, records of criminal cases including bail, criminal appeal and criminal revision decided by the petitioner as Judicial Officer were called for and ultimately, the Registrar (Vigilance) conducted enquiry and submitted report and in the enquiry, no apparent irregularity was found in the sessions case, criminal appeals and criminal revisions for the period from August, 2015 to January, 2016 decided by the petitioner and two other judicial officers, however, certain irregularities were found in respect of four bail applications decided by the petitioner which shows the inability of the petitioner to act as a Judicial officer and his working was found not to be satisfactory. Ultimately, inspection report dated 15-6-2016 submitted by the Registrar (Vigilance) was placed before the Portfolio Judge, Raip
